THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


REPORT 


OF  THE  CASE  OF 


THE  TRUSTEES  OF  DARTMOUTH  COLLEGE 


AGAINST 


WILLIAM  H.  WOODWARD. 


ARGUED  AND  DETERMINED  IN  THE  SUPERIOR  COURT  OF  JUDICATURE  OF 
THE  STATE  OF  NEW-HAMPSHIRE,  NOVEMBER  1817. 


AND  ON  ERROR 


IN  THE  SUPREME  COURT  OF  THE  UNITED  STATES,  FEBRUARY  1819* 


BY  TIMOTHY  FARRAR 

COUNSELLOR  AT  LAW 


PORTSMOUTH,  JV.  H. 
PUBLISHED  BY  JOHN  W.  FOSTER, 

ANJI 

WEST,  RICHARDSON,  AND  LORD,  BOSTON 
T.   '.   WILLIAMS.  I'KI.YTKH.  F.XKTF.R. 


iHSTRICT   Ur    >KW-HAMP»lintr.,   Til    \\  It   .    - 

BE  IT  REMEMBERED,  That  on  the  9th  day  of  August,  1819,  and  in  tin:  ibrty-third  ye.-.r 
. if  tin  Independence  of  the  United  States  uf  America,  TIMOTHY  FARRAR,  of  the  said  district. 
hath  deposited  in  this  office  the  titleof  a  book,  the  right  whereof  he  claims  as  Author  and  Proprii 
tor  in  the  words  following,  TO  WIT  :— 

"  Report  of  the  case  of  the  Trustees  of  Dartmouth  College  against  William  H.  Woodward. - 
Argued  and  determined  in  the  Superior  Court  of  Judicature,  el'  the  State  of  New-Hampshin  . 
November,  1817.  And  on  Error  in  the  Supreme  Court  of  the  United  States,  February  181'j, 
By  TIMOTHY  FARRAR,  Counsellor  at  Law." 

In  conformity  to  the  act  of  the  Congress  of  the  United  States,  entitled,  "An  Act  for  the  en- 
couragement of  learning,  by  securing  the  copies  of  Maps,  Charts,  ami  Hunks,  to  the  Authors  and 
Proprietors  of  such  copies,  during  the  times  therein  mentioned. 

PEYTON  R.  FREEMAN, 
Clerk  of  the  District  of  New- Hampshire. 
A  true  copy  of  Record, 

Auret,  PEYTON  R,  i  KEEMAN,  Clerk. 


ADVERTISEMENT. 


•  L  [ion  the  decision  ol  the  ',■■  stio  siuvolved  i:i  this  case,  depended  the  t  ivlo  lo  ihe 
wholi'  properly  and  eorpn 'a  e  .raneliisi's  of  a  useful  and  respectable  literary  insti- 
tution' Its  impor  ■-..:.<■■■ ''it  re  fore  to  that  seminary  alone,  would  seem  to  require 
the  publication  of  if<  ii  report  of  tin- arguments  and  reasonings,  v.  Iiieh 'preceded 
and  led  to  it.  Hu'  tiie  impn.-;  mee  ofthe  decision  is  not  limi.ed  to  a  single  institu- 
tion, h  is  perhaps  of  equal  importance  to  every  o'ln  r  literary  and  charitable  cor- 
poration of  our  country.  They  are  all,  or  nearly  all,  ofthe  sa.ne  nature,  and  hold 
tin  ir  propert)  anil  franchises  by  the  same  tenure.  Whether  this  be  a  permanent, 
vested  interest,  or  a  mere  estate  at  the  will  of  the  legislative  body,  is  the  general 
question  here  discussed  and  si  tiled.  The  singular  ability  and  success,  with  which 
evcrv  pat  t  of  tin  s.ibjeet  has  been  investigati  d  and  developed,  not  less  than  its  gen- 
eral  mil  paitici.lr.r  importance,  have  given  an  interest  to  the  cause,  that  would 
hardiv  be  satisfied  with  any  report,  which  should  fall  short  of  giving  its  entire  jn- 
dici..i  history. 

Mr.  Wheaton,  the  learned  reporter  of  the  decisions  of  the  Supreme  Court  ofthe 

I  "niiedSt  ites,  v.  ill  undoubtedly  give,  in  his  valuable  work,  a  condensed   account  of 

ease,  necessarily  omitting  all  that  [>art  ofthe'   discussion,  which  took  place   in 

'     •  state  court.     This  case  will  however  form  but  a  small   part  oft  ie  volume,  and 

£2      the  volume  itself  will  form  the  fourth  of  a  series,  the  size'  and  expense  of  which  will 

^       exclude  i!  from  the  libraries  of  many,  who  would  bo  desirous  to  St  e  a  more  e.nlnrg- 

.  d  aecou    '  .1'.  thi'  case.  — 
^  tor  these  reaj>'ias  the  Iteporter  trusts  he  has  not  rendered  an  unacceptable  ser- 

0^  \i<  ■  to  the  prof  -i<*n,  in  presenting  them  with  this  volume.  Tli>:  arguments  and 
-J  opi. line. s  have  in  mo-1  instances  been  taken  from  the  original  minutes  of  their  uu- 
gU  tho;'"!,  and  con-' i  ted  l;v   then. '-elves.     To  their  goodness  in  this  respect,  the  Kepori- 

*  er  '-la 'iie  rmbrac  s  this  otivorlunitv  of  nublicklv  acknow  leik.ee;  ins  obligations-  In 
o  -  '  '  '  ' 

^  one  or  i  •  n  in  I  .■■  ci  s,  w  here  the  counsel  could  not  render  the  s. assistance,  then 

,e,,   ■        ie  ■  n  carefullv  prepared  from  notes  taken  at  the  time   they   were 

I'l-livi  n  n 

Tin-  1 1        rs  relating  to  this  oase.w  uich  are  thrown  into  the  Apia  ndiv,  are  all  ti li- 
lt .       . 

in.    :,w  disclosing  anv   lei;al  vie vi  s  originally    i nlel  l:.ined    ol    the    constitutional 

this  corpor.it  ion  at  the  time  and  subsequent  io  lii<-  passing  of  the  legislative 

*  •  Tin-  oth  r  papers  in  tin:  Appendix,  it  is  hoped  v.  ill  not  he '.hour,hl  to  i']tin!i 
J           !  h   tlir   vi, lee  ofthe'  publication. — 

v  •'<,<■    H'tiuh,  .it-hu,  i-rt. 


CONTENTS. 


PAGE. 

DECLARATION 1 

Picas I 

Special  Verdict 1 

Charter  of  1709 2 

Act  of  the  Legislature  of. Tune  27th,  1816 18 

December  18,  1816 23 

December  26th,  1816 25 

Arguments  in  the  Superior  Court  of  New-Hampshire. — 

Mr.  Mason     -------        ...  28 

Mr.  Sullivan 70 

Mr.  Smith 104 

Mr.Bartlett 161 

Mr.  Webster 206 

Opinion  of  the  Superior  Court  of  New-Hampshire 206 

Judgment  of  the  Superior  Court  of  New  -Hampshire 235 

Writ  of  Error 235 

Assignment  of  Errors         ----.--»--  235 

Agreement  of  the  Parties      ----- 237 

Arguments  in  the  Supreme  Court  of  the  United  States- 
Mr.  Webster        .--  238 

Mr.  Holmes 284 

Mr.  Wirt 288 

Mr.  Elopkinson        -- 295 

Opinions  of  the  Supreme  Court  of  the  United  States. — 

Mr.  Chief  Justice  Marshall 306 

Mr.  Justice  Washington 33L 

Mr.  Justice  Story 340 

Judgment  of  the  Supreme  Court  of  the  United  States 377 

Appendix 379 

Vote  of  the  Trustees  not  accepting  the  Act  of  June  27,  1816        ...  384 

Pn>test  of  the  Minority  of  the  House  of  Representatives    -        -        -        -  389 

Extract  from  Bishop   Stillingfleet 393 

Harvard  College -        -  397 

Yale  College 401 


REPORT,  $c. 


THE  action,  the  Trustees  of  Dartmouth  College  vs. 
William  H.  Woodward,  was  commenced  at  the  Court  of 
Common  Pleas,  Grafton  County,  February  term  1817.  The 
writ  was  sued  out  on  the  8tb,  and  Berved  on  the  10th  of  the 
same  month.  The  declaration  was  Trover  for  two  Books 
of  Records,  purporting  to  contain  the  records  of  all  the  do- 
ings and  proceedings  of  the  Trustees  of  Dartmouth  College 
from  the  organization  of  the  corporation  until  the  7th  day  of 
October  1816,  of  the  value  of  $5000 — the  original  Charter 
or  Letters  patent  constituting  the  College,  of  the  value  of 
$10,000— the  Common  Seal  of  the  value  of  $1000— and  four 
Volumes  or  Books  of  account  purporting  to  contain  the  charg- 
es and  accounts  in  favour  of  the  College  of  the  value  of 
$10,000.  The  conversion  was  alleged  to  have  been  made, 
on  the  7th  day  of  October  1816  ;  and  the  plaintiffs  damag- 
es laid  at  $50,000. 

By  consent  of  parties,  the  proper  pleas  were  filed  for 
carrying  the  cause  directly  to  the  Superior  Court  by 
appeal.  It  was  entered  at  the  Superior  Court,  Grafton 
County,  May  term  1817,  when  the  former  pleas  being  wav- 
ed, the  defendant  pleaded  the  general  issue,  which  was  join- 
ed by  the  plaintiffs.  The  facts  in  the  case  were  then  agreed 
upon  by  the  parties,  drawn  up  in  the  form  of  a  special  ver- 
dict and  found  by  the  jury  as  follows. 

The  said  Jurors,  upon  their  oath,  say,  that  his  Majesty 
George  the  Third,  King  of  Great  Britain,  &c.  issued  his  Let- 
2 


2  «  DARTMOUTH  COIXRGE  VS.  WOODWARD." 

ters  patent  under  the  publick  seal  of  the  Province,  now  State 
of  New-Hampshire,  bearing  date  the  13th  day  of  December 
in  the  10th  year  of  his  reign,  and  in  the  year  of  our  Lord 
one  thousand  seven  hundred  and  sixty-nine,  in  the  words 
following  :  — 

GEORGE  the  THIRD,  by  the  grace  of  GOD,  of  Great- 
Britain,  France,  and  Ireland  KING,  Defender  of  the 
Faith,  and  so  forth. 

To  all  to  whom  these  presents  shall  come.. ..GREETING. 

"WHEREAS  it  hath  been  represented  to  our  trusty  and 
well  beloved  John  Wentworth,Esq.  Governor  and  comman- 
der in  chief,  in  and  over,  our  Province  of  New-Hampshire 
in  New-England  in  America,  that  the  Reverend  Eleazar 
Wheelock  of  Lebanon  in  the  colony  of  Connecticut  in  New- 
England  aforesaid,  now  Doctor  in  Divinity,  did,  on  or  about 
the  year  of  our  Lord  one  thousand  seven  hundred  and  fifty- 
four,  at  his  own  expense,  on  his  own  estate  and  plantation 
set  on  foot  an  Indian  Charity  School,  and  for  several  years 
through  the  assistance  of  well  disposed  persons  in  America, 
clothed,  maintained  and  educated  a  number  of  the  children 
of  the  Indian  natives,  with  a  view  to  their  carrying  the  gos- 
pel in  their  own  language,  and  spreading  the  knowledge  of 
the  great  Redeemer,  among  their  savage  tribes,  and  hath 
actually  employed  a  number  of  them  as  missionaries  and 
school  masters  in  the  wilderness  for  that  purpose  :  and 
by  the  blessing  of  God  upon  the  endeavours  of  said  Wheel- 
ock, the  design  became  reputable  among  the  Indians,  inso- 
much that  a  larger  number  desired  the  education  of  their 
children  in  said  school,  and  were  also  disposed  to  receive 
missionaries  and  school  masters  in  the  wilderness,  more 
than  could  be  supported  by  the  charitable  contributions  in 
these  American  colonies. 

Whereupon  the  said  Eleazar  Wheelock  thought  it  ex- 
pedient, that  endeavours  should  be  used  to  raise  contri- 
butions   from    well   disposed   persons    in  England,    for   the 


SUPERIOR  COURT,  NEW-HAMPSHIRE.  o 

carrying  on  and  extending  said  undertaking;  and  for  that 
purpose  the  said  Eleazar  Wheelock  requested  the  Rev. 
Nathaniel  Whitaker,  now  Doctor  in  Divinity,  to  go  over 
to  England  for  that  purpose,  and  sent  over  with  him  tlie 
Rev.  Samson  Occom,  an  Indian  Minister,  who  had  been 
educated  by  the  said  Wheelock.  And  to  enable  the 
said  Whitaker  to  the  more  successful  performance  of  said 
work,  on  which  he  was  sent,  said  Wheelock  gave  him  a 
full  power  of  allorney,  by  which  said  Whitaker  solicited 
those  worthy  and  generous  contributors  to  the  charity,  viz. 
The  Right  Honourable  William,  Earl  of  Dartmouth, the  Hon- 
ourable Sir  Sydney  Stafford  Smythe, Knight,  one  of  the  Ba- 
rons of  his  Majesty's  court  of  Exchequer,  John  Thornton  of 
Clapham  in  the  County  of  Surrey,  Esquire,  Samuel  Roffey 
of  Lincoln's  inn-fields,  in  the  County  of  Middlesex,  Esquire, 
Charles  Hardy  of  the  parish  of  Saint  Mary-le-bonne  in  said 
County,  Esquire,  Daniel  West  of  Christ's  Church  Spital- 
fields  in  the  county  aforesaid,  Esquire,  Samuel  Savage  of  the 
same  place,  Gentleman,  Josiah  Roberts  of  the  Parish  of  Saint 
Edmund  the  King  Lombard  Street  London,  Gentleman,  and 
Robert  Keen  of  the  Parish  of  Saint  Batolph  Aldgate  London 
Gentleman,  to  receive  the  several  sumi  of  money,  which 
should  be  contributed,  and  to  be  Trustees  for  the  contribu- 
tors to  such  charity,  which  they  cheerfully  agreed  to. 

Whereupoa  the  said  Whitaker  did,  by  virtue  of  said 
power  of  attorney  constitute  and  appoint  the  said  Earl  of 
Dartmouth,  Sir  Sydney  Stafford  Smythe,  John  Thornton, 
Samuel  Roffey,  Charles  Hardy  and  Daniel  West,  Esquires, 
and  Samuel  Savage,  Josiah  Roberts  and  Robert  Keen,  Gen- 
tlemen, to  be  Trustees  ol  the  money,  which  had  then  been 
contributed,  and  which  should  by  his  means  be  contributed 
for  said  purpose  :  which  trust  they  have  accepted,  as  bv 
their  engrossed  declaration  of  the  same  under  their  hands 
and  seals  well  executed,  fully  appears,  and  the  same  has 
also  been  ratified,  by  a  deed  of  trust  well  executed,  by  fh<" 
*aid  Wheelock. 


4  "DARTMOUTH  COLLEGE  VS.  WOODWARD." 

And  the  said  Wheelock  further  represents,  that  he 
has,  by  power  of  attorney,  for  many  weighty  reasons, 
given  full  power  to  the  said  Trustees  to  fix  upon  and 
determine  the  place  for  said  school,  most  subservient 
to  the  great  end  in  view  :  and  to  enable  them  understand- 
ingly  to  give  the  preference,  the  said  Wheelock  has  laid 
before  the  said  Trustees  the  several  otters,  which  have  been 
generously  made  in  the  several  governments  in  America, 
to  encourage  and  invite  the  settlement  of  said  school 
among  them  for  their  own  private  Emolument  and  the 
increase  of  learning  in  their  respective  places,  as  well  as 
for  the  furtherance  of  the  general  design  in  view. 

And  whereas  a  large  number  of  the  proprietors  of  lands 
in  the  western  part  of  this  our  Province  of  New-Hampshire, 
animated  and  excited  thereto  by  the  generous  example  of  his 
Excellency  their  governor,  and  by  the  liberal  contributions 
of  many  noblemen  and  gentlemen  in  England,  and  especial- 
ly by  the  consideration,  that  such  a  situation  would  be  as 
convenient  as  any  for  carrying  on  the  great  design  among 
the  Indians  ;  and  also  considering,  that  without  the  least  im- 
pediment to  the  said  design,  the  same  school  may  be  en- 
larged and  improved  to  promote  learning  among  the  Eng- 
lish, and  be  a  means  to  supply  a  great  number  of  churches 
and  congregations,  which  are  likely  soon  to  be  formed  in 
that  new  country,  with  a  learned  and  orthodox  ministry  ; 
they  the  said  proprietors  have  promised  large  tracts  of 
land,  for  the  uses  aforesaid,  provided  the  school  shall  be 
settled  in  the  western  part  of  our  said  Province.  And  they 
the  said  Right  Honourable,  Honourable  and  worthy  Trustees 
before  mentioned,  having  maturely  considered  the  reasons 
and  arguments,  in  favour  of  the  several  places  proposed, 
have  given  the  preference  to  the  western  part  of  our  said 
Province  lying  on  Connecticut  river,  as  a  situation  most 
convenient  for  said  school. 

And  the  said  Wheelock  has  further  represented  a  ne- 
cessity of  a  legal  incorporation,  in  order  to  the  safety  and 


SUPERIOR  COURT,  NEW-HAMPSHIRE.  5 

well  being  of  said  seminary,  and  its  being  capable  of  the 
tenure  and  disposal  of  lands  and  bequests  for  the  use  of 
the  same. 

And  the  said  Wheelock  has  also  represented,  that  for 
many  weighty  reasons,  it  will  be  expedient,  at  least  in  the 
infancy  of  said  institution,  or  till  it  can  be  accommodated 
in  that  new  country,  and  he  and  his  friends  be  able  to  re- 
move and  settle  by  and  round  about  it,  that  the  gentlemen, 
whom  he  has  already  nominated  in  his  last  Will,  (which  he 
has  transmitted  to  the  aforesaid  gentlemen  of  the  trust  in 
England,)  to  be  Trustees  in  America,  should  be  of  the  cor- 
poration now  proposed.  And  also  as  there  are  already  large 
collections  for  said  school,  in  the  hands  of  the  aforesaid 
gentlemen  of  the  trust  in  England,  and  all  reason  to  be- 
lieve, from  their  singular  wisdom,  piety,  and  zeal  to  promote 
the  Redeemer's  cause,  (which  has  already  procured  for 
them  the  utmost  confidence  of  the  kingdom,)  we  may  ex- 
pect they  will  appoint  successors  in  time  to  come,  who  will 
be  men  of  the  same  spirit,  whereby  great  good  may  and  will 
accrue  many  ways  to  the  institution,  and  much  be  done  by 
their  example  and  influence  to  encourage  and  facilitate  the 
whole  design  in  view  :  for  which  reason  said  Wheelock  de- 
sires, that  the  Trustees  aforesaid  may  be  vested  with  all 
that  power  therein,  which  can  consist  with  their  distance 
from  the  same. 

KNOW  YE  THEREFORE,  That  We,  considering 
the  premises,  and  being  willing  to  encourage  the  laudable 
and  charitable  design  of  spreading  christian  knowledge 
among  the  savages  of  our  American  wilderness,  and  also 
that  the  best  means  of  education  be  established  in  our  Prov- 
ince of  New-Hampshire,  for  the  benefit  of  said  Province, 
do,  of  our  special  grace,  certain  knowledge,  and  mere  mo- 
tion, by  and  with  the  advice  of  our  Council  for  said  Prov- 
ince, by  these  presents,  will,  ordain,  grant,  and  constitute, 
that  there  be  a    College  erected    in    our    said    Province  of 


6        «  DARTMOUTH  COLLEGE  VS.  WOODWARD." 

New-Hampshire,  by  the  name  of  DARTMOUTH  COL- 
LEGE, for  the  education  and  instruction  of  youth  of  the 
Indian  tribes  in  this  land,  in  reading,  writing,  and  all  parts 
of  learning,  which  shall  appear  necessary  and  expedient, 
for  civilizing  and  christianizing  children  of  pagans,  as  well 
as  in  all  liberal  arts  and  sciences,  and  also  of  English  youth 
and  any  others.  And  theTrustees  of  said  College  may  and 
shall  be  one  body  corporate  and  politick,  in  deed,  action, 
and  name,  and  shall  be  called,  named  and  distinguished 
by  the  name  of  the  TRUSTEES  OF  DARTMOUTH 
COLLEGE. 

And  further  we  have  willed,  given,  granted,  constituted, 
and  ordained,  and  by  this  our  present  Charter,  of  our  spe- 
cial grace,  certain  knowledge,  and  mere  motion,  with  the 
advice  aforesaid,  do,  for  us,  our  heirs,  and  successors  for- 
ever, will,  give,  grant,  constitute,  and  ordain,  that  there 
shall  be  in  the  said  Dartmouth  College,  from  henceforth  and 
forever,  a  body  politick  consisting  of  Trustees  of  said  Dart- 
mouth College.  And  for  the  more  full  and  perfect  erection 
of  said  corporation  and  body  politick,  consisting  of  Trustees 
of  Dartmouth  College,  we,  of  our  special  grace,  certain 
knowledge,  and  mere  motion,  do,  by  these  presents,  for  us, 
our  heirs  and  successors,  make,  ordain,  constitute,  and  ap- 
point our  trusty  and  well  beloved  John  Wentworth,  Esq. 
Governor  of  our  said  Province,  and  the  Governor  of  our  said 
Province  of  New-Hampshire  for  the  time  being,  and  our 
trusty  and  well  beloved  Theodore  Atkinson,  Esq.  now 
President  of  our  Council  of  our  said  Province,  George  Jaf- 
frey  and  Daniel  Peirce,  Esquires,  both  of  our  said  Council, 
and  Peter  Gilman,  Esq.  now  speaker  of  our  House  of  Rep- 
resentatives in  said  Province,  and  William  Pitkin,  Esq.  one 
of  the  assistants  of  our  Colony  of  Connecticut,  and  our  said 
trusty  and  well  beloved  Eleazar  Wheelock  of  Lebanon,  Doc- 
tor in  Divinity,  Benjamin  Pomroy  of  Hebron,  James  Lock- 
wood  of  Weathcrsfield,  Timothy  Pitkin,  and  John  Smalley 


SUPERIOR  COURT,  NEW-HAMPSHIRE.  * 

of  Farmington,  and  William  Patten  of  Hartford,  all  of  our 
said  Colony  of  Connecticut,  ministers  of  the  gospel,  (the 
whole  number  of  said  Trustees  consisting,  and  hereafter  for- 
ever to  consist,  of  twelve  and  no  more)  to  be  Trustees  of 
said  Dartmouth  College  in  this  our  Province  of  New-Hamp- 
shire. 

And  we  do  further,  of  our  special  grace,  certain  knowl- 
edge, and  mere  motion  for  us,  our  heirs,  and  successors, 
will,  give,  grant,  and  appoint,  that  the  said  Trustees  and 
their  successors  shall  forever  hereafter  be,  in  deed,  act,  and 
name  a  body  corporate  and  politick,  and  that  they,  the  said 
body  corporate  and  politick, shall  be  known  and  distinguish- 
ed, in  all  deeds,  grants,  bargains,  sales,  writings,  evidences, 
or  otherwise  howsoever,  and  in  all  courts  forever  hereafter 
plead  and  be  impleaded  by  the  name  of  The  Trustees  of 
Dartmouth  College  ;  arid  that  the  said  corporation,  by  the 
name  aforesaid,  shall  be  able  and  in  law  capable,  for  the  use 
of  said  Dartmouth  College,  to  have,  get,  acquire,  purchase, 
receive,  hold,  possess,  and  enjoy,  tenements,  hereditaments, 
jurisdictions, and  franchises, for  themselves  and  their  succes- 
sors, in  fee  simple,  or  otherwise  howsoever,  and  to  purchase, 
receive,  or  build,  any  house  or  houses,  or  any  other  build- 
ings, as  they  shall  think  needful  and  convenient,  for  the  use 
of  said  Dartmouth  College,  and  in  such  town  in  the  western 
part  of  our  said  Province  of  New-Hampshire,  as  shall  by  said 
Trustees,  or  the  major  part  of  them,  be  agreed  on  ;  their 
said  agreement  to  be  evidenced  by  an  instrument  in  writing, 
under  their  hands,  ascertaining  ihe  same — And  also  to  re- 
ceive and  dispose  of  any  lands,  goods,  chattels,  and  other 
things  of  what  nature  soever,  for  the  use  aforesaid — And  al- 
so to  have,  accept,  and  receive  any  rents,  profits,  annuities, 
gifts,  legacies,  donations,  or  bequests  of  any  kind  whatsoev- 
er, for  the  use  aforesaid  ;  so  nevertheless  that  the  yearly 
value  of  the  premises  do  not  exceed  the  sum  of  six  thousand 
pounds  sterling  ;    and    therewith  or    otherwise    to  support 


8       « DARTMOUTH  COLLEGE  VS.  WOODWARD." 

and  pay,  as  the  said  Trustees,  or  the  major  part  of  such 
of  them  as  are  regularly  convened  for  the  purpose, 
shall  agree,  the  President,  Tutors,  and  other  officers  and 
ministers  of  said  Dartmouth  College ;  and  also  to  pay  all 
such  missionaries  and  school  masters  as  shall  be  authorized 
appointed,  and  employed  by  them,  for  civilizing,  and  chris- 
tianizing, and  instructing  the  Indian  natives  of  this  land, 
their  several  allowances  ;  and  also  their  respective  annual 
salaries  or  allowances,  and  all  such  necessary  and  contingent 
charges,  as  from  time  to  time  shall  arise  and  accrue,  relating 
to  the  said  Dartmouth  College  : — And  also  to  bargain,  sell, 
let,  or  assign  lands,  tenements,  or  hereditaments,  goods,  or 
chattels,  and  all  other  things  whatsoever,  by  the  name  afore- 
said, in  as  full  and  ample  a  manner,  to  all  intents  and  pur- 
poses^ a  natural  person,or  other  body  politick  or  corporate, 
is  able  to  do  by  the  laws  of  our  realm  of  Great-Britain,  or  of 
said  Province  of  New-Hampshire. 

And  further  of  our  special  grace,  certain  knowledge,  and 
mere  motion,  to  the  intent  that  our  said  corporation  and 
body  politick  may  answer  the  end  of  their  erection  and  con- 
stitution, and  may  have  perpetual  succession  and  continu- 
ance forever,  we  do  for  us,  our  heirs,  and  successors,  will, 
give,  and  grant  unto  the  Trustees  of  Dartmouth  CoN 
lege,  and  to  their  successors  forever,  that  there  shall  be, 
once  a  year  and  every  year,  a  meeting  of  said  Trustees, 
held  at  said  Dartmouth  College,  at  such  time  as  by  said 
Trustees,  or  the  major  part  of  them,  at  any  legal  meeting  of 
said  Trustees,  shall  be  agreed  on  ;  the  first  meeting  to  be 
called  by  the  said  Eleazar  Wheelock,  as  soon  as  conven- 
iently may  be,  within  one  year  next  after  the  enrollment  of 
these  our  Letters  patent,  at  such  time  and  place  as  he  shall 
judge  proper.  And  the  said  Trustees,  or  the  major  part 
of  any  seven  or  more  of  them,  shall  then  determine  on 
the  time  for  holding  the  annual  meeting  aforesaid,  which  may 
he  altered  as  thev  shall  hereafter  find  most  convenint.  And 


SUPERIOR  COURT,  NEW-HAMPSHIRE.  9 

we  further  order  and  direct,  that  the  said  Eleazar  Wheel- 
ock  shall  notify  the  time  for  holding  said  first  meeting,  to  be 
called  as  aforesaid,  by  sending  a  letter  to  each  of  said  Trus- 
tees, and  causing  an  advertisement  thereof  to  be  printed  in 
the  New-Hampshire  Gazette,  and  in  some  publick  newspa- 
per printed  in  the  Colony  of  Connecticut.  But  in  case  of 
the  death  or  incapacity  of  the  said  Wheelock,  then  such 
meeting  to  be  notified  in  manner  aforesaid, by  theGovernotfr 
or  Commander  in  Chief  of  our  said  Province  for  the  time 
being.  And  we  do  also  for  us,  our  heirs,  and  succes* 
sors,  hereby  will,  give,  and  grant,  unto  the  said  Trustees  of 
Dartmouth  College  aforesaid  and  to  their  successors  forever, 
that  when  any  seven  or  more  of  the  said  Trustees  or  their 
successors  are  convened  and  met  together,  for  the  service 
of  said  Dartmouth  College,  at  any  time  or  times,  such  sev- 
en or  more  shall  be  capable  to  act  as  fully  and  amply,  to  all 
intents  and  purposes,  as  if  all  the  Trustees  of  said  College 
were  personally  present — and  all  affairs  and  actions  whatso- 
ever, under  the  care  of  the  said  Trustees,  shall  be  determin- 
ed by  the  majority  or  greater  number  of  those  seven  or 
more  Trustees  so  convened  and  met  together. 

And  we  do  fnrlher  will,  ordain,  and  direct,  that  the 
President,  Trustees,  Professors,  Tutors,  and  all  such  offi- 
cers as  shall  be  appointed,  for  the  publick  instruction  and* 
government  of  said  College,  shall  before  they  undertake  the 
execution  of  their  offices  or  trusts,  or  within  one  year  after, 
take  the  oaths  and  subscribe  the  declaration  provided  by  an 
act  of  Parliament  made  in  the  first  year  of  King  George  the 
first,  entitled  "  An  art  for  the  further  security  of  his  Majes- 
ty's person  and  government,  and  the  succession  of  the 
crown  in  the  heirs  of  tlie  late  princess  Sopkia,  being  prot- 
estants,  and  for  the  extinguishing  the  hopes  of  the  pretended 
Prince  of  Wales,  and  his  open  and  secret  abettors"  that  is 
to  say,  the  President  before  the  Govcrnour  of  our  said  Prov- 
ince for  the  time  being,  or  by  one  by  him  empowered  to  that 


10  "DARTMOUTH  COLLEGE  VS.  WOODWARD." 

service,  or  by  the  President  of  our  said  Council,  and  the 
Trustees,  Professors,  Tutors,  and  other  officers,  before  the 
President  of  said  College  for  the  time  being,  who  is  hereby 
impowercd  to  administer  the  same  ;  an  entry  of  all  which 
shall  be  made  in  the  records  of  said  College. 

And  we  do  for  us,  our  heirs,  and  successors  hereby 
will,  give,  and  grant  full  power  and  authority  to  the  Presi- 
dent hereafter  by  as  named,  and  to  his  successors,  or  iu 
case  of  his  failure  to  any  three  or  more  of  the  said  Trustees, 
to  appoint  other  occasional  meetings,  from  time  to  time,  of 
the  said  seven  Trustees  or  any  greater  number  of  them,  to 
transact  any  matter  or  thing  necessary  to  be  done  before  the 
next  annual  meeting,  and  to  order  notice  to  the  said  seven 
or  any  greater  number  of  them,  of  the  times  and  places  of 
meeting  for  the  service  aforesaid,  by  a  letter  under  his  or 
their  hands,  of  the  same,  one  month  before  said  meeting — 
Provided  always,  that  no  standing  rule  or  order  be  made 
or  altered  for  the  regulation  of  said  College,  nor  any  Presi- 
dent or  Professor  be  chosen  or  displaced,  nor  any  other 
matter  or  thing  transacted  or  done,  which  shall  continue  in 
force  after  the  then  next  annual  meeting  of  the  said  Trus- 
tees as  aforesaid. 

And  further  we  do  by  these  presents  for  us,  our  heirs 
and  successors,  create,  make,  constitute,  nominate,  and  ap- 
point our  trusty  and  well  beloved  Eleazar  Wheelock,  Doc- 
tor in  Divinity,  the  Founder  of  said  College,  to  be  Presi- 
dent of  said  Dartmouth  College,  and  to  have  the  immediate 
care  of  education  and  government  of  such  students,  as 
shall  be  admitted  into  said  Dartmouth  College,  for  instruc- 
tion and  education  ;  and  do  will,  give,  and  grant  to  him,  in 
said  office,  full  power,  authority,  and  right  to  nominate,  ap- 
point, constitute,  and  ordain,  by  his  last  Will,  such  suitable 
and  oaeet  person  or  persons  as  he  shall  choose  to  succeed  him 
iu  the  Presidency  of  said  Dartmouth  College  ;  and  the  per- 
son so]  appointed,   by  his    last    will    to    continue   in    office 


SUPERIOR  COURT,  NEW-HAMPSHIRE  1 1 

vested  with  all  the  powers,  privileges,  jurisdiction  and  au- 
thority of  a  President  of  said  Dartmouth  College  ;  that  is  to 
say,  so  long  and  until  such  appointment  by  said  last  Will 
shall  be  disapproved  by  the  Trustees  of  said  Dartmouth 
College. 

And  we  do  also  for  us,  our  heirs,  and  successors,  will, 
give,  and  grant  to  the  said  Trustees  of  said  Dartmouth  Col- 
lege, and  to  their  successors  forever,  or  any  seven  or  more 
of  them  convened  as  aforesaid,  that  in  the  case  of  the  ceas- 
ing or  failure  of  a  President  by  any  means  whatsoever,  that 
the  said  Trustees  do  elect,  nominate,  and  appoint  such  qual- 
ified person,  as  they,  or  the  major  part  of  any  seven  or 
more  of  them  convened  for  that  purpose  as  above  directed 
shall  think  fit,  to  be  President  of  said  Dartmouth  Collpge, 
and  to  have  the  care  of  the  education  and  government  of  the 
students  as  aforesaid,  and  in  case  of  the  ceasing  of  a  Presi- 
dent as  aforesaid,  the  Senior  Professor  or  Tutor,  being  one 
of  the  Trustees,  shall  exercise  the  office  of  a  President,  un- 
til the  Trustees,  shall  make  choice  of  and  appoint  a  Presi- 
dent as  aforesaid;  and  such  Professor  or  Tutor,or  any  three 
or  more  of  the  Trustees,shall  immediately  appoint  a  meeting 
of  the  body  of  the  Trustees  for  the  purpose  aforesaid.  And 
also  we  do  will,  give,  and  grant  to  the  said  Trustees  con- 
vened as  aforesaid,  that  they  elect,  nominate,  and  appoint 
so  many  Tutors  and  Professors  to  assist  the  President  in 
the  education  and  government  of  the  students  belonging 
thereto,  as  they  the  said  Trustees  shall,  from  time  to  time, 
think  needful  and  serviceable  to  the  interests  of  said  Dart- 
mouth College.  And  also  that  the  said  Trustees  or  their 
successors,  or  the  major  of  any  seven  or  more  of  them  con- 
vened for  that  purpose  as  above  directed,  shall  at  any  time 
displace  and  discharge  from  the  service  of  said  Dartmouth 
College  any  or  all  such  officers,  and  elect  others  in  their 
room  and  stead  as  before  directed.  And  also  that  the  said 
Trustees  or  their    successors,  or  tiie  major  part  of  any  »ev 


12  v  DARTMOUTH  COLLEGE  VS.  WOODWARD." 

en  of  them  which  shall  convene  for  that  purpose  as  above 
directed,  do,  from  time  to  time  as  occasion  shall  require, 
elect,constitute,  and  appoint  a  Treasurer,  a  Clerk,  an  Usher, 
and  a  Steward  for  the  said  Dartmouth  College,  and  appoint 
to  them  and  each  of  them  their  respective  businesses  and 
trust ;  and  displace  and  discharge  from  the  service  of  said 
College,  such  Treasurer,  Clerk,  Usher  or  Steward,  and  to 
elect  others  in  their  room  and  stead  ;  which  officers  so 
elected,  as  before  directed,  we  do  for  us,  our  heirs  and  suc- 
cessors, by  these  presents,  constitute  and  establish  in  their 
respective  offices,  and  do  give  to  each  and  every  of  them, 
full  power  and  authority  to  exercise  the  same  in  said  Dart- 
mouth College,  according  to  the  directions,  and  during  the 
pleasure  of  the  said  Trustees,  as  fully  and  freely  as  any  like 
officers  in  any  of  our  universities,  colleges,  or  seminaries 
of  learning  in  our  realm  of  Great  Britain,  lawfully  may  or 
ought  to  do — And  also  that  the  said  Trustees  and  their  sucr 
cessors,  or  the  major  part  of  any  seven  or  more  ©f  them, 
which  shall  convene  for  that  purpose  as  is  above  directed,  as 
often  as  one  or  more  of  said  Trustees  shall  die  or  by  remov- 
al or  otherwise  shall,  according  to  their  judgment,  become 
unfit  or  incapable  to  serve  the  interests  of  said  College,  do, 
as  soon  as  may  be  after  the  death,  removal,  or  such  unfit- 
ness or  incapacity  of  such  Trustee  or  Trustees,  elect  and 
appoint  such  Trustee  or  Trustees  aa  shall  supply  the  place 
of  him  or  them  so  dying  or  becoming  incapable  to  serve  the 
interests  of  said  College  ;  and  every  Trustee  so  elected  and 
appointed,  shall,  by  virtue  of  these  presents  and  such  elec- 
tion and  appointment,  be  vested  with  all  the  powers  and 
privileges,  which  any  of  the  other  Trustees  of  said  College 
are  hereby  vested  with.  And  we  do  further  will,  ordain, 
and  direct,  that  from  and  after  the  expiration  of  two  years 
from  the  enrollment  of  these  presents,  such  vacancy  or  va- 
cancies as  may  or  shall  happen,  by  death  or  otherwise  in  the 
aforesaid  number  of  Trustees,  shall  be  filled  up  by  election 


SUPERIOR  COURT,  NEW-HAMPSHIRE.  13 

as  aforesaid,  so  that  when  such  vacancies  shall  be  filled  up 
unto  the  complete  number  of  twelve  Trustees,  eight  of  the 
aforesaid  whole  number  of  the  body  of  Trustees  shall  be  res- 
ident, and  respectable  freeholders  of  our  said  Province  of 
New-Hampshire,  and  seven  of  said  whole  number  shall  be 
laymen. 

And  we  do  further  of  our  special  grace,  certain  knowl- 
edge, and  mere  motion,  will,  give,  and  grant,  unto  the  said 
Trustees  of  Dartmouth  College,  that  they,  and  their  suc- 
cessors or  the  major  part  of  any  seven  of  them  which  shall 
convene  for  that  purpose  as  is  above  directed,  may  make, 
and  they  are  hereby  fully  impowcred,from  time  to  time,fully 
and  lawfully  to  make  and  establish  such  ordinances,  orders, 
and  laws  as  may  tend  fo  the  good  and  wholesome  govern- 
ment of  the  said  College,  and  all  the  students  and  the  seve- 
ral officers  and  ministers  thereof  and  to  the  publick  benefit 
of  the  same,  not  repugnant  to  the  laws  and  statutes  of  our 
realm  of  Great  Britain  or  of  this  our  Province  of  New- 
Hampshire,  and  not  excluding  any  person  of  any  religious 
denomination  whatsoever  from  free  and  equal  liberty  and  ad- 
vantage of  education,  or  from  any  of  the  liberties  and  privi- 
leges or  immunities  of  the  said  College  on  account  of  his  or 
their  speculative  sentiments  in  religion,  and  of  his  or  their 
being  of  a  religious  profession  different  from  the  said  Trus- 
tees of  the  said  Dartmouth  College.  And  such  ordinances, 
orders  and  laws,  which  shall  as  aforesaid  be  made,  we  do 
for  us,  our  heirs,  and  successors  by  these  presents  ratify 
allow  of,  and  confirm,  as  good  and  effectual  to  oblige  and 
bind  all  the  students  and  the  several  officers  and  ministers 
of  the  said  College.  And  we  do  hereby  authorize  and  im« 
power  the  said  Trustees  of  Dartmouth  College,  and  the 
President,  Tutors  and  Professors  by  them  elected  and  ap- 
pointed as  aforesaid,  to  put  such  ordinances,  orders  and  laws, 
in  execution  to  all  proper  intents  and  purposes. 

And  we  do  further  of  our  special  grace,  certain  knowl- 
edge, and  mere   motion,  will,  givo,  and  grant  unto  the  said 


14  "DARTMOUTH  COLLEGE  VS.  WOODWARD." 

Trustees  of  said  Dartmouth  College,  for  the  encouragement 
of  learning,  and  animating  the  students  of  said  College  to 
diligence  and  industry,  and  a  laudable  progress  in  literature 
that  they,  and  their  successors  or  the  major  part  of  any  sev- 
en or  more  of  them  convened  for  that  purpose  as  above  di- 
rected, do,  by  the  President  of  said  College  for  the  time  be- 
ing, or  any  other  deputed  by  them,  give,  and  grant  any  such 
degree  or  degrees  to  any  of  the  students  of  the  said  Col- 
lege, or  any  others  by  them,  thought  worthy  thereof,  as  are 
usually  granted  in  either  of  the  universities,  or  any  other 
college  in  our  realm  of  Great  Britain  ;  and  that  they  sign 
and  seal  diplomas  or  certificates  of  such  graduations,  to  be 
kept  by  the  graduates  as  perpetual  memorials  and  testimo- 
nials thereof. 

And  we  do  further  of  our  special  grace,  certain  knowl- 
edge, and  mere  motion  by  these  presents  for  us,  our  heirs, 
and  successors,  give  and  grant  unto  the  Trustees  of  said 
Dartmouth  College  and  to  their  successors,  that  they  and 
their  successors  shall  have  a  common  seal,  under  which 
they  may  pass  all  diplomas  or  certificates  of  degrees,  and 
all  other  affairs  and  business  of  and  concerning  the  said  Col- 
lege ;  which  shall  be  engraven  in  such  a  form,  and  with 
such  an  inscription  as  shall  be  devised  by  the  said  Trustees, 
for  the  time  being,  or  by  the  major  part  of  any  seven  or 
more  of  them  convened  for  the  service  of  the  said  College 
as  is  above  directed. 

And  we  do  further  for  us,  our  heirs  and  successors, 
give  and  grant  unto  the  said  Trustees  of  the  said  Dart- 
mouth College  and  their  successors,  or  to  the  major  part  of 
any  seven  or  more  of  them  convened  for  the  service  of  the 
said  College,  full  power  and  authority,  from  time  to  time,  to 
nominate  and  appoint  all  other  officers  and  ministers,  which 
they  shall  think  convenient  and  necessary  for  the  service  of 
the  said  College,  not  herein  particularly  named  or  mention- 
ed ;  which  officers  and  ministers  we  do  hereby  impower  to 


SUPERIOR  COURT,  NEW-HAMPSHIRE.  15 

execute  their  offices  and  trusts,  as  fully  and  freely  as  any 
of  the  officers  and  ministers  in  our  universities  or  colleges 
in  our  realm  of  Great  Britain  lawfully  may  or  ought  to  do. 
And  further,  that  the  generous  contributors  to  the  sup- 
port of  this  design  of  spreading  the  knowledge  of  the  only 
true  God  and  Saviour  among  the  American  savages,  may, 
from  time  to  time,  be  satisfied  that  their  liberalities  are  faith- 
fully disposed  of  in  the  best  manner  for  that  purpose,  and 
lhat  others  may  in  future  time  be  encouraged  in  the  exercise 
of  the  like  liberality  for  promoting  the  same  pious  design,  it 
shall  be  the  duty  of  the  President  of  said  Dartmouth  Col- 
lege and  of  his  successors,  annually  or  as  often  as  he  shall 
be  thereunto  desired  or  required,  to  transmit  to  the  Right 
Honourable,  Honourable  and  worthy  gentlemen  of  the 
trust  in  England  beforementioned,  a  faithful  account  of  the 
improvement  and  disbursements  of  the  several  sums  he  shall 
receive  from  the  donations  and  bequests  made  in  England 
through  the  hands  of  said  Trustees,  and  also  advise  them  of 
the  general  plans  laid,  and  prospects  exhibited,  as  well  as  a 
faithful  account  of  all  remarkable  occurrences,  in  order,  if 
they  shall  think  expedient,  that  they  may  be  published. 
And  this  to  continue  so  long  as  they  shall  perpetuate  their 
board  of  trust  and  there  shall  be  any  of  the  Indian  natives 
remaining  to  be  proper  objects  of  that  charity.  And  lastly 
our  express  will  and  pleasure  is,  and  we  do  by  these  pres- 
ents, for  us,  our  heirs  and  successors,  give  and  grant  unto 
the  said  Trustees  of  Dartmouth  College  and  to  (heir  suc- 
cessors forever,  that  these  our  Letters  patent,  or  the  enroll- 
ment thereof  in  the  Secretary's  office  of  our  Province  of 
New-Hampshire  aforesaid,  shall  be  good  and  effectual  in 
the  law,  to  all  intents  and  purposes,  against  us,  our  heirs, 
aod  successor;*,  without  any  other  license,  grant  or  con- 
firmation from  us,  our  heirs  and  successors  hereafter  by  the 
said  Trustees  to  be  had  and  obtained,  notwithstanding  the 
uot  writing  or  misrecital,  not  naming  or  misnaming  tiie  afore- 


16  «' DARTMOUTH  COLLEGE  VS.  WOODWARD." 

said  offices,  franchises,  privileges,  immunities,  or  other 
the  premises,  or  any  of  them,  and  notwithstanding  a  writ  of 
ad  quod  damnum  hath  not  issued  forth  to  enquire  of  the 
premises  or  any  of  them,  before  the  ensealing  hereof,  any 
statute,  act,  ordinance,  or  provision  or  any  other  matter 
or  thing  to  the  contrary  notwithstanding.  To  have  and 
to  hold  all  and  singular  the  privileges,  advantages,  liber- 
ties, immunities,  and  all  other  the  premises  herein  and  here- 
by granted  or  which  are  meant,  mentioned,  or  intended  to 
be  herein  and  hereby  given  and  granted,  unto  them  the  said 
Trustees  of  Dartmouth  College,  and  to  their  successors  for- 
ever. In  testimony  whereof,  we  have  caused  these  our 
Letters  to  be  made  patent,  and  the  public  Seal  of  our  said 
Province  of  New-Hampshire  to  be  hereunto  affixed.  Wit- 
ness our  trusty  and  well  beloved  John  Wentworth,  Esquire, 
Governour  and  commander  in  chief,  in  and  over  our  said 
Province,  &c.  this  thirteenth  day  of  December,  in  the  tenth 
year  of  our  reign,  and  in  the  year  of  our  Lord  one  thousand 
seven  hundred  and  sixty  nine. 

N.  B.  l«The  words  "  and  such  Professor  or  Tutor  or  any 
three  or  more  of  the  Trustees  shall  immediately  appoint  a 
meeting  of  the  body  of  the  Trustees  for  the  purpose  afore- 
said," between  the  first  and  second  lines,  also  the  words  "or 
more"  between  the  twenty  seventh  and  twenty  eighth  lines, 
also  the  words  "  or  more"  between  the  twenty  eighth  and 
twenty  ninth  lines,  and  also  the  words,  "  to  all  intents  and 
purposes"  between  the  thirty  seventh  and  thirty  eighth 
lines  of  this  sheet  were  respectively  interlined  before  sign- 
ing and  sealing. 

And  the  said  Jurors,  upon  their  oath,  further  say,  that  af- 
terwards upon  the  eighteenth  day  of  the  same  December, 
the  said  letters  patent  were  duly  enrolled  and  recorded  in 
the  Secretary's  office  of  said  Province,  now  State  of  New- 
Hampshire — And  afterwards  and  within  one  year  from  the 
issuing  of  the  same  letters  patent, all  the  persons,  named  as 


SUPERIOR  COURT,  NEW-HAMPSHIRE.  17 

Trustees  in  the  same,  accepted  the  said  letters  patent  and 
assented  thereunto,  and  the  corporation  therein  and  thereby 
created  and  erected  was  duly  organized  and  has  until  the 
passing  of  the  act  of  the  legislature  of  the  state  of  New- 
Hampshire  of  the  27th  of  June  A.  D.  1816,  and  ever  since 
(unless  prevented  by  said  act  and  the  doings  under  the 
same)  continued  to  be  a  corporation. 

And  the  said  Jurors,  upon  their  oath,  further  say,  that 
immediately  after  its  erection  and  organization  as  aforesaid, 
the  said  corporation  had,  took,  acquired,  and  received,  by 
gift,  donation,  devise  and  otherwise,  lands,  goods*  chattels, 
and  monies  of  great  value  ;  and  from  time  to  time  since  have 
had,  taken,  received,  and  acquired,  in  manner  aforesaid  and. 
otherwise,  lands,  goods,  chattels,  and  monies  of  great  value  ; 
and  on  the  same  27th  day  of  June  A.  D.  1816,  the  said 
corporation,  erected,  and  organized  as  aforesaid,  had,  held, 
and  enjoyed,  and  ever  since  have  had,  held,  and  enjoyed 
divers  lands,  tenements,  hereditaments,  goods,  chattels,  and 
monies  acquired  in  manner  aforesaid,  the  yearly  income  of 
the  same  not  exceeding  the  sum  of  $26,6*36,  for  the  use  of 
said  Dartmouth  College  as  specified  in  said  letters  patent. 

And  the  said  Jurors,  upon  their  oath,  further  saj',  that 
part  of  the  said  lands,  so  acquired  and  holden  by  the  said 
Trustees  as  aforesaid,  were  granted  by  (and  are  situate  in) 
the  state  of  Vermont  A.  D.  1785,  and  are  of  great  value  ; 
and  other  part  of  said  lands,  so  acquired  and  holden  as  a- 
foresaid,  were  granted  by  (and  are  situate  in)  the  state  of 
New-Hampshire  in  the  years  1789  and  1807,  and  are  of 
great  value. 

And  the  said  Jurors,  upon  their  oath,further  say,  that  the 
said  Trustees  of  Dartmouth  College  so  constituted  as  afore- 
said, on  the  same  27th  day  of  June  A.  D.  1816,  were  pos- 
sessed of  the  goods  and  chattels  in  the  declaration  of  the 
said  Trustees  specified,  and  at  the  place  therein  mentioned, 
as  of  their  own  proper  goods  and  rhuttels,  and  continued  so 
4 


18  "DARTMOUTH  COLLEGE  VS.  WOODWARD." 

possessed  until  and  at  the  time  of  the  demand  and  refusal  of 
the  same  as  herein  after  mentioned,  unless  divested  thereof 
and  their  title  thereto  defeated  and  rendered  invalid,  by  the 
provisions  of  the  act  of  the  legislature  of  the  state  of  New- 
Hampshire  made  and  passed  on  the  same  27th  day  of  June 
A.  D.  1816,  and  the  doings  under  the  same  as  herein  after 
mentioned  and  recited. 

And  the  said  Jurors,  upon  their  oath,  further,  say, 
that  on  the  27th  day  of  June  A.  D.  1816,  the  legislature  of 
said  state  of  New-Hampshire,  made  and  passed  a  certain 
act  entitled,  "  An  act  to  amend  the  charter  and  enlarge 
and  improve  the  corporation  of  Dartmouth  College,"  in 
the  words  following : — 

An  Act  to  amend  the  charter  and  enlarge  and  improve  the 
corporation  of  Dartmouth  College. 

WHEREAS  knowledge  and  learning  generally  diffused 
through  a  community  are  essential  to  the  preservation  of  a 
free  government,  and  extending  the  opportunities  and  ad- 
vantages of  education  is  highly  conducive  to  promote  this 
end,  and  by  the  constitution  it  is  made  the  duty  of  the  leg- 
islators and  magistrates  to  cherish  the  interests  of  literature 
and  the  sciences,  and  all  seminaries  established  for  their  ad- 
vancement— and  as  the  college  of  this  state  may  in  the  opin- 
ion of  the  legislature  be  rendered  more  extensively  useful  ; 
Therefore, 

Sect.  1.  Be  it  enacted  by  the  senate  and  house  of  rep- 
resentatives in  general  court  convened,  That  the  corpora- 
tion, heretofore  called  and  known  by  the  name  of  the  Trus- 
tees of  Dartmouth  College,  shall  ever  hereafter  be  called 
and  known  by  the  name  of  the  Trustees  of  Dartmouth  Uni- 
versity— And  the  whole  number  of  said  trustees  shall  be 
twenty-one,  a  majority  of  whom  shall  form  a  quorum  for  the 
transaction  of  business — And  they  and  their  successors  in 
that  capacity,  as  hereby  constituted,  shall  respectively  for- 


SUPERIOR  COURT,  NEW-HAMPSHIRE.  19 

ever  have,  hold,  use,  exercise  and  enjoy  all  the  powers,  au- 
thorities, rights,  property,  liberties,  privilege*  and  immuni- 
ties which  have  hitherto  been  possessed,  enjoyed  and  used 
by  the  trustees  of  Dartmouth  College — except  so  far  as  the 
same  may  be  varied  or  limited  by  the  provisions  of  this  act. 
And  they  shall  have  power  to  determine  the  times  and  pla- 
ces of  their  meetings,  and  manner  of  notifying  the  same  ; 
to  organize  colleges  in  the  university  ;  to  establish  an  insti- 
tute and  elect  fellows  and  members  thereof:  to  appoint 
such  officers  as  Ihey  may  deem  proper,  and  determine  their 
duties  and  compensation,  and  also  to  displace  them  ;  to  del- 
egate the  power  of  supplying  vacancies  in  any  of  the  offices 
of  the  university,  for  any  term  of  time  not  extending  beyond 
their  next  meeting  :  to  pass  ordinances  for  the  government 
of  (he  students,  with  reasonable  penalties,  not  inconsistent 
with  the  constitution  and  laws  of  this  state;  to  prescribe  the 
course  of  education  and  confer  degrees  ;  and  to  arrange,  in- 
vest and  employ  the  funds  of  the  University. 

Sect.  2.  And  be  it  further  enacted,  That  there  shall 
be  a  board  of  overseers,  who  shall  have  perpetual  succes- 
sion and  whose  number  shall  be  twenty -five,  fifteen  of  whom 
shall  constitute  a  quorum  for  the  transaction  of  business. 
The  president  of  the  senate  and  the  speaker  of  the  house  of 
representatives  of  New-Hampshire,  the  governour  and  lieu- 
tenant governour  of  Vermont,  for  the  time  being,  shall  be 
members  of  said  board,  ex-officio.  The  board  of  overseers 
shall  have  power  to  determine  the  times  and  places  of  their 
meetings,  and  manner  of  notifying  the  same  ;  to  inspect  and 
confirm  or  disapprove  and  negative  such  votes  and  proceed- 
ings of  the  board  of  trustees  as  shall  relate  to  the  appoint- 
ment and  removal  of  president,  professors  and  other  perma- 
nent officers  of  the  university,  and  determine  their  salaries; 
to  the  establishment  of  colleges  and  professorships  and  the 
erection  of  new  college  buildings. — Provided  always,  that 
the  said  negative  shall  be  expressed  within  sixty  days  from 


20      «  DARTMOUTH  COLLEGE  VS.  WOODWARD." 

the  time  of  said  overseers  being  furnished  with  copies  of 
such  acts. — Provided  also,  that  all  votes  and  proceedings 
of  the  board  of  trustees  shall  be  valid  and  effectual,  to  all 
intents  and  purposes,  until  such  negative  of  the  board  of 
overseers  be  expressed  according  to  the  provisions  of  this 
act. 

Sect.  3.  Be  it  further  enacted,  That  there  shall  be  a 
treasurer  of  said  corporation,  who  shall  be  duly  sworn,  and 
who,  before  he  enters  upon  the  duties  of  his  office,  shall 
give  bonds  with  sureties  to  the  satisfaction  of  the  corpora- 
tion for  the  faithful  performance  thereof ;  and  also  a  secre- 
tary to  each  of  the  boards  of  trustees  and  overseers,  to  be 
elected  by  the  said  boards  respectively,  who  shall  keep  a 
just  and  true  record  of  the  proceedings  of  the  board  for 
which  he  was  chosen.  And  it  shall  furthermore  be  the  du- 
ty of  the  secretary  of  the  board  of  trustees  to  furnish  as 
soon  as  may  be  to  the  said  board  of  overseers,  copies  of  the 
records  of  such  votes  and  proceedings  as  by  the  provisions 
of  this  act  are  made  subject  to  their  reversion  and  controul. 

Sect.  4.  Be  it  further  enacted,  That  the  president  of 
Dartmouth  University,  and  his  successors  in  office,  shall 
have  the  superintendence  of  the  government  and  instruction 
of  the  students  and  may  preside  at  all  meetings  of  the  trus- 
tees ;  and  do  and  execute  all  the  duties  devolving  by  usage 
on  the  president  of  a  university. — He  shall  render  annually 
to  the  governour  of  this  state  an  account  of  the  number  of 
students,  and  of  the  state  of  the  funds  of  the  university  ;  and 
likewise  copies  of  all  important  votes  and  proceedings  of  the 
corporation  and  overseers,  which  shall  be  made  out  by  the 
secretaries  of  the  respective  boards. 

Sect.  6.  3e  it  further  enacted,  That  the  president  and 
professors  of  the  university  shall  be  nominated  by  the  trus- 
tees and  approved  by  the  overseers  :  and  shall  be  liable  to 
be  suspended  or  removed  from  office  in  manner  as  before 
provided.     And   each   of  the  two  boards  of  trustees  and 


SUPERIOR  COURT,  NEW-HAMPSHIRE.  21 

overseers  shall  have  power  to     suspend   and   remove  any 
member  of  their  respective  boards. 

Sect.  6.  Beit  further  enacted,  That  the  governour  and 
council  are  hereby  authorized  to  fill  all  vacancies  in  the 
board  of  overseers,  whether  the  same  be  original  vacancies, 
or  are  occasioned  by  the  death,  resignation  or  removal  of 
any  member.  And  the  governour  and  council  in  like  man- 
ner shall,  by  appointments,  as  soon  as  may  be,  complete  the 
present  board  of  trustees  (o  the  number  of  twenty-one,  as 
provided  for  by  this  act,  and  shall  have  power  also  to  fill 
all  vacancies  that  may  occur  previous  to  or  during  the  first 
meeting  of  the  said  board  of  trustees. — But  the  president 
of  said  university  for  the  time  being,  shall  nevertheless  be  a 
member  of  said  board  of  trustees,  ex-officio.  And  the  gov- 
ernour and  council  shall  have  power  to  inspect  the  doings  and 
proceedings  of  the  corporation  and  of  all  the  officers  of  the 
university,  whenever  they  deem  it  expedient — and  they  are 
hereby  required  to  make  such  inspection  and  report  the 
same  to  the  legislature  of  this  state  as  often  as  once  in  every 
five  years.  And  the  governour  is  hereby  authorized  and  re- 
quested to  summon  the  first  meeting  of  the  said  trustees  and 
overseers,  to  be  held  at  Hanover  on  the  26th  day  of  Au- 
gust next. 

Sect.  7.  Be  it  further  enacted,  That  the  president  and 
professors  of  the  university,  before  entering  upon  the  duties 
of  their  offices,  shall  take  the  oath  to  support  the  constitu- 
tion of  the  United  States  and  of  this  state;  certificates  of 
which  shall  be  in  the  office  of  the  secretary  of  this  state,within 
sixty  days  from  their  entering  on  their  offices  respectively. 

Sect.  8.  Be  it  further  enacted,  That  perfect  freedom  of 
religious  opinion  shall  be  enjoyed  by  all  the  officers  and 
students  of  the  university  ;  and  no  officer  or  student  shall 
be  deprived  of  any  honours,  privileges  or  benefits  of  the  in- 
stitution, on  account  of  his  religious  creed  or  belief.  The 
'heological  colleges  which  may  be  established  in  the  univer- 


22  "DARTMOUTH  COLLEGE  VS.  WOODWARD." 

sity  shall  be  founded  on  the  same  principles  of  religious  free- 
dom ;  and  any  man  or  body  of  men  shall  have  a  right  to 
endow  colleges  or  professorships  of  any  sect  of  the  protes- 
(ant  christian  religion  :  And  the  trustees  shall  be  held  and 
obliged  to  appoint  professors  of  learning  and  piety  of  such 
sects,  according  to  the  will  of  the  donors. 

Approved  June  27th,  1816, 

And  the  said  Jurors,  upon  their  oath,  further  say,  that  at 
the  annual  meeting  of  the  Trustees  of  Dartmouth  College 
constituted  agreeably  to  the  letters  patent  aforesaid,  and  in 
no  other  way  or  manner,  iiolden  at  said  College  on  the  28th 
day  of  August  A.  D.  1816,  the  said  Trustees  voted  and  re- 
solved, and  caused  the  said  vote  and  resolve  to  be  entered 
on  their  records(l),  that  they  do  not  accept  the  provisions 
of  the  said  act  of  the  legislature  of  New-Hampshire  of  the 
27th  of  June  A.  D.  1816  above  recited,  but  do  by  the  said 
vote  and  resolve  expressly  refuse  to  accept  or  act  under 
the  same. 

And  the  said  Jurors,  upon  their  oath,  further  say,  that  the 
said  Trustees  of  Dartmouth  College  have  never  accepted, 
assented  to  or  acted  under  the  said  act  of  the  27th  of  June, 
A.  D.  1816,  or  any  act  passed  in  addition  thereto  or  in  a- 
mendment  thereof,  but  have  continued  to  act  and  still  claim 
the  right  of  acting  under  the  said  letters  patent. 

And  the  said  Jurors,  upon  their  oath,  further  say,  that  on 
the  seventh  day  of  October,  A.  D.  1816,  and  before  the 
commencement  of  this  suit,  the  said  Trustees  of  Dartmouth 
College  demanded  of  the  said  William  H.  Woodward  the 
property,  goods  and  chattels,  in  the  said  declaration  speci- 
fied, and  requested  the  said  William  H.  Woodward,  who 
then  had  the  same  in  his  hands  and  possession,  to  deliver 
the  same  to  them,  which  the  said  William  H.  Woodward 
then  and  there  refused  to  do,and  has  ever  since  neglected  and 
refused  to  do,  but  converted  the  same  to  his  own  use,  if  the 

(I)  Sec  Appendix  No.  1. 


SUPERIOR  COURT,  NEW-HAMPSHIRE.  23 

said  Trustees  of  Dartmouth  College  could,  after  the  passing 
of  the  said  act  of  the  27th  day  of  June,  lawfully  demand  the 
same,  and  if  the  said  William  H.  Woodward  was  not  by 
law  authorized  to  retain  the  same  in  his  possession  after 
such  demand. 

And  the  said  Jurors,  upon  their  oath,  further  say,  that  on 
the  18th  day  of  December  A. D.  1816,  the  legislature  of  said 
state  of  New-Hampshire  made  and  passed  a  certain  other 
act  entitled,  "An  act  in  addition  to  and  in  amendment  of  an 
act  entitled  An  act  to  amend  the  charter  and  enlarge  and  im- 
prove the  corporation  of  Dartmouth  College,"  in  the  words 
following  : — 

An  Act  in  addition  to  and  in  amendment  of  an  act,  entitled, 
"  An  act  to  amend  the  charter  and  enlarge  and  improve 
the  corporation  of  Dartmouth  College." 

WHEREAS  the  meetings  of  the  Trustees  and  Over- 
seers of  Dartmouth  University,  which  were  summoned  a- 
greeably  to  the  provisions  of  said  act,  failed  of  being  duly 
holden,  in  consequence  of  a  quorum  of  neither  said  trustees 
nor  overseers  attending  at  the  time  and  place  appointed, 
whereby  the  proceedings  of  said  corporation  have  hitherto 
been  and  still  are  delayed  : 

Section  1.  Be  it  enacted  by  the  senate  and  house  of 
representatives,  in  general  court  convened,  That  the  gov- 
ernour  be,and  he  is  hereby  authorized  and  requested  to  sum- 
mon a  meeting  of  the  trustees  of  Dartmouth  University,  at 
such  time  and  place  as  he  may  deem  expedient.  And  the 
said  trustees  at  such  meeting,  may  do  and  transact  any  mat- 
ter or  thins;,  within  the  limits  of  their  jurisdiction  and  pow- 
er, as  such  trustees,  to  every  intent  and  purpose,  and  as 
fully  and  completely  as  if  the  same  were  transacted  at  any 
annual  or  other  meeting.  And  the  governour,  with  advice  of 
council,  is  authorized  to  fill  all  vacancies  that  have  happened 
or  may  happen  in  the  board  ol  said  trustees,  previous  to  their 


24  "DARTMOUTH  COLLEGE  VS.  WOODWARD." 

next  annual  meeting.  And  the  governour  is  hereby  authoria-* 
ed  to  summon  a  meeting  of  the  overseers  of  said  Universitj, 
at  such  time  and  place  as  he  may  consider  proper.  And  pro- 
vided a  less  number  than  a  quorum  of  said  board  of  overseers 
convene  at  the  time  and  place  appointed  for  such  meeting  of 
their  board,  they  shall  have  power  to  adjourn,  from  time  to 
time,  until  a  quorum  shall  have  convened. 

Sect.  2.  And  be  it  further  enacted,  That  so  much  of 
the  act,  to  which  this  is  an  addition,  as  make  necessary  any 
particular  number  of  trustees  or  overseers  of  said  University 
to  constitute  a  quorum  for  the  transaction  of  business,  be  and 
the  same  hereby  is  repealed  ;  and  that  hereafter  nine  of  said 
trustees,  convened  agreeably  to  the  provisions  of  this  act,  or 
to  those  of  that  to  which  this  is  an  addition,  shall  be  a  quo- 
rum for  transacting  business  ;  and  that  in  the  board  of  trus- 
tees six  votes  at  least  shall  be  necessary  for  the  passage  of 
any  act  or  resolution.  And  provided  also  that  an}-  smaller 
number  than  nine  of  said  trustees,  convened  at  the  time  and 
place  appointed  for  any  meeting  of  their  board,  according  to 
the  provisions  of  this  act,  or  that  to  which  this  is  an  addi- 
tion, shall  have  power  to  adjourn  from  time  to  time,  until  a 
quorum  shall  have  convened. 

Sect.  3.  And  be  it  further  enacted,  That  each  mem- 
ber of  said  board  of  trustees,  already  appointed  or  chosen, 
or  hereafter  appointed  or  chosen,  shall,  before  entering  on 
the  duties  of  his  office,  make  and  subscribe  an  oath  for  the 
faithful  discharge  of  the  duties  aforesaid  ;  which  oath  shall 
be  returned  to  and  filed  in  the  office  of  the  secretary  of  state, 
previous  to  the  next  regular  meeting  of  said  board,  after  said 
member  enters  on  the  duties  of  his  office  as  aforesaid. 

Approved  December  18,  1816. 

And  the  said  Jurors,  upon  their  oath,  further  say,  that  on 
the  26th  day  of  December  A.  D.  1816,  the  legislature  of  said 
state  of  New-Hampshire  made  and  passed  a  certain  other 
act  entitled,  "An  act  in  addition  to  an    act  entitled  an  act  in 


SUPERIOR  COURT,  NEW-HAMPSHIRE.  25 

addition  to  and  in  amendment  of  an  act  entitled  an  act  to  a- 
mend  the  charter  and  enlarge  and  improve  the  corporation 
of  Dartmouth  College,  in  the  words  following: — 

An  Act  in  addition  to  an  act,  entitled  "  an  act  in  addition 
to  and  in  amendment  of  an  act  entitled  an  act  to  amend 
the  charter  and  enlarge  and  improve  the  corporation  of 
Dartmouth  College." 

BE  it  enacted  by  the  senate  and  house  of  representatives 
in  general  court  convened,  That  if  any  person  or  persons 
shall  assume  the  office  of  president,  trustees,  professor,  sec- 
retary, treasurer,  librarian,  or  other  officer  of  Dartmouth 
University,  or  by  any  name  or  under  any  pretext  shall  di 
rectly  or  indirectly  take  upon  himself  or  themselves  the  dis* 
charge  of  any  of  the  duties  of  either  of  those  offices,  except 
it  be  pursuant  to  and  in  conformity  with  the  provisions  of  an 
act,  entitled  "  an  act  to  amend  the  charter  and  enlarge  and 
improve  the  corporation  of  Dartmouth  College,"  or,  of  the 
"  act  in  addition  to  and  in  amendment  of  an  act  entitled  an 
act  to  amend  the  charter  and  enlarge  and  improve  the  cor- 
poration of  Dartmouth  College,"  or  shall  in  any  way  direct- 
ly or  indirectly  wilfully  impede  or  hinder  any  such  officer 
or  officers  already  existing,  or  hereafter  to  be  appointed  a- 
greeably  to  the  provisions  of  the  acts  aforesaid,  in  the  free 
and  entire  discharge  of  the  duties  of  their  respective  offices, 
conformably  to  the  provisions  of  said  acts,  the  person  or 
persons  so  offending  shall  for  each  offence  forfeit  and  pay 
the  sum  of  five  hundred  dollars,  to  be  recovered  by  any  per- 
son who  shall  sue  therefor,  one  half  thereof  to  the  use  of  the 
prosecutor,  and  the  other  half  to  the  use  of  said  University. 

And  be  it  further  enacted,  That  the  person  or  persons 
who  sustained  the  offices  of  secretary  and  treasurer  of  the 
trustees  of  Dartmouth  College,  next  before  the  passage  of 
the  act  entitled  "  an  act  to  amend  the  charter  and  enlarge 
and  improve  the  corporation  of   Dartmouth  College,"  shaft 


26  DARTMOUTH  COLLEGE  VS.  WOODWARD. 

continue  (o  hold  and  discharge  the  duties  of  those  offices, 
as  secretary  and  treasurer  of  the  trustees  of  Dartmouth 
University,  until  another  person  or  persons  be  appointed  in 
his  or  their  stead  by  the  trustees  of  said  University.  And 
that  the  treasurer  of  said  University,  so  existing,  shall  in  his 
office  have  the  care,  management,  direction,  and  superinten- 
dence of  the  property  of  said  corporation,  whether  real  or 
personal,  until  a  quorum  of  said  trustees  shall  have  conven- 
ed in  a  regular  meeting. 

Approved  December  26,  1816. 

And  the  said  Jurors,  upon  their  oath,  further  say,  that  the 
said  William  H.  Woedward,  before  the  said  27th  day  of 
June,  had  been  duly  appointed  by  the  said  trustees  of 
Dartmouth  College,  Secretary  and  Treasurer  of  the  said 
corporation,  and  was  duly  qualified  to  exercise  and  did  ex- 
ercise the  said  offices  and  perform  the  duties  of  the  same  ; 
and  as  such  Secretary  and  Treasurer  rightfully  had,  while 
he  so  continued  Secretary  and  Treasurer  as  aforesaid,  the 
custody  and  keeping  of  the  several  goods,  chattels,  and 
property  in  said  declaration  specified. 

And  the  said  Jurors,  upon  their  oath,  further  say,  that  the 
said  William  H.  Woodward  was  removed  by  said  Trustees 
of  Dartmouth  College  (if  the  said  Trustees  could  bylaw 
do  the  said  acts)  from  said  office  of  Secretary,  on  the  27th 
day  of  August  A.  D.  1816,  and  from  said  office  of  Treasurer 
on  the  27th  day  of  September  then  next  following,  of  which 
said  removals  he,  the  said  William  H.  Woodward,  had  due 
notice  on  each  of  said  days  last  mentioned. 

And  the  said  Jurors,  upon  their  oath,  further  say,  that  the 
corporation  called  the  Trustees  of  Dartmouth  University 
was  duly  organized  on  the  fourth  day  of  February  A.  D. 
1817,  pursuant  to  and  under  the  said  recited  acts  of  the 
27th  day  of  June,  and  of  the  18th  and  26th  days  of  Decem- 
ber A.  D.  1816  ;  and  the  said  William  H.  Woodward  was 
on  (he  said  fourth  day  of  February  A.   D.  1817,  duly  ap- 


SUPERIOR  COURT,  NEW-HAMPSHIRE.  27 

pointed  by  the  said  Trustees  of  Dartmouth  University,  Sec- 
retary and  Treasurer  of  the  said  Trustees  of  Dartmouth 
University,  and  then  and  there  accepted  both  said  offices. 

And  the  said  Jurors,  upon  their  oath,  further  say,  that  this 
suit  was  commenced  on  the  eighth  day  of  February  A.  D. 
1817. 

But  whether  upon  the  whole  matter  aforesaid,  by  the  Ju- 
rors aforesaid  in  manner  and  form  aforesaid  found,  the  said 
acts  of  the  27th  of  June,  18th  and  26th  of  December  A.  D. 
1816  are  valid  in  law  and  binding  on  the  said  Trustees  of 
Dartmouth  College,  without  acceptance  thereof  and  assent 
thereunto  by  them,  so  as  to  render  the  plaintiffs  incapable 
of  maintaining  this  action,  or  whether  the  same  acts  are  re- 
pugnant to  the  constitution  of  the  United  States  and  so  void, 
the  said  Jurors  are  wholly  ignorant  and  pray  the  advice  of 
the  court  upon  the  premises. — And  if  upon  the  said  matter, 
it  shall  seem  to  the  court  here,  that  the  said  acts  last  men- 
tioned are  valid  in  law  and  binding  on  said  Trustees  of 
Dartmouth  College,  without  acceptance  thereof  and  assent 
thereto  by  them,  so  as  to  render  the  plaintiffs  incapable,  of 
maintaining  this  action,  and  are  not  repugnant  to  the  constitu- 
tion of  the  United  States,  then  the  said  Jurors,  upon  their 
oath,  say  that  the  said  William  H.  Woodward  is  not  guilty 
of  the  premises  above  laid  to  his  charge,  by  the  declaration 
aforesaid,  as  the  said  William  H.  Woodward  hath  above 
in  pleading  alleged. — But  if  upon  the  whole  matter  afore- 
said, it  shall  seem  to  the  court  here,  that  the  said  acts  last 
mentioned  are  not  valid  in  law,  and  are  not  binding  on  the 
said  Trustees  of  Dartmouth  College,  without  acceptance 
thereof  and  agsent  thereto  by  them,  so  as  to  render  them  in- 
capable of  maintaining  this  action,  and  that  the  said  acts  are 
repugnant  to  the  constitution  of  the  United  States  and  void, 
then  the  said  Jurors,  upon  their  oath,  say  that  the  said  Wil- 
liam H.  Woodward  is  guilty  of  the  premises  above  laid  to 
his  charge,  by  the  declaration  aforesaid,  and  in   that    case, 


28  DARTMOUTH  COLLEGE  VS.  WOODWARD 

they  assess  the  damages  of  them,  the  said  Trustees  ot 
Dartmouth  College,  by  occasion  thereof  to  twenty  thousand 
dollars." 

Afterwards  at  the  same  term,  the  argument  was  opened 
on  the  part  of  the  plaintiffs  by  Mr.  Mason  and  Mr.  Smith, 
and  on  the  part  of  the  defendant  by  Mr.  Bartlett  and  Mr. 
Sullivan,  and  the  cause  was  continued  nisi,  for  further  ar- 
gument, in  Rockingham  County  on  the  next  circuit. 

At  the  September  Term  in  Rockingham  County,  present 
all  the  Judges,  vis. 

Hon.  WILLIAM  M.  RICHARDSON,  ciiif  jtstice. 
Hon.  SAMUEL  BELL,  >   JUSTICE« 

Hon.  LEVI  WOODBURY,    $  JUSTICEB- 

The  cause  came  on  to  be  again  argued. 

Mr.  Mason. — By  the  charter  of  1769  a  corporation  is 
created,  by  the  name  of  "  The  Trustees  of  Dartmouth  Col- 
lege." The  charter  recites,  that  much  expense  and  great 
labour  had  been  bestowed,  in  erecting  and  supporting  a 
charity  school,  which  had  become  highly  useful ;  and  that 
individuals,  as  well  in  England  as  in  this  country,  were  dis- 
posed to  make  donations,  for  its  enlargement,  and  more  libe- 
ral endowment  ;  and  that  the  king,  "  willing  to  encourage 
the  laudable  and  charitable  design,"  established  the  corpo- 
ration. Twelve  persons  are  appointed  under  the  name  of 
trusteeSy  to  constitute  the  corporation,  and  it  is  expressly 
provided,  that  it  shall  forever  thereafter  consist  of  twelve 
trustees,  and  no  more.  To  them  is  granted  the  right  to  ac- 
quire, and  hold  real  and  personal  estate,  and  to  dispose  of 
the  same  for  the  use  of  the  college  ;  and  to  appoint  future 
trustees  to  fill  vacancies  in  their  board  ;  and  also  to  appoint 
the  necessary  officers  of  the  college,  and  to  assign  them  their 
duties  and  salaries  ;  and  to  make  laws  and  regulations  for  the 
proper  government  of  the  institulion,  together  with  all  the 
usual  powers  of  such  corporations.     "  To  have  and  hold  all 


SUPERIOR  COURT,  NEW-HAMPSHIRE.  29 

Mid  singular  the  -privileges,  advantages,  liberties  and  im- 
munities, and  all  other  the  premises,  herein  and  hereby, 
granted  and  given,  or  which  are  meant,  mentioned,  or  intend- 
ed to  be  given  and  granted  unto  them,  the  said  trustees  of 
Dartmouth  College,  and  their  successors  forever." 

The  first  act  (of  2fth  of  June  1816)  makes  the  twelve  trus- 
tees, under  the  charter,  and  nine  individuals,  ,to  be  appoint- 
ed by  the  Governour  and  Council,  a  corporation,  by  the 
name  of  "  the  trustees  of  Dartmouth  University  ;"  and 
transfers  to  them  all  "  the  property,  rights,  powers,  liber- 
ties and  privileges"  of  the  old  corporation,  with  power  to 
establish  new  colleges  and  an  Institute  ;— -subject  to  the 
controul  of  a  board,  of  twenty-five  overseers,  to  be  appoint- 
ed by  the  Governour  and  Council. 

The  second  act  makes  provision  for  obviating  certain  dif- 
ficulties, which  had  occurred  in  attempting  to  execute  the 
first.  And  the  last  act  authorizes  the  defendant,  who  was 
the  Plaintiffs'  treasurer,  to  retain  and  hold  for  a  certain  time, 
all  their  property  against  their  will  ;  and  subjects  them  to 
heavy  penalties,  should  they  impede  or  hinder  the  execu- 
tion of  the  acts. 

Under  colour  of  these  acts,  the  defendant  claims  to  hold 
the  property  mentioned  in  the  declaration. 

The  question  is  whether  the  acts  are  obligatory,  and  bind- 
ing on  the  plaintiffs  ;  they  never  having  accepted  or  assent 
ed  to  them. 

By  the  necessary  construction  of  these  acts,  the  old  cor 
poration  is  abolished,  if  they  are  valid  ;  and  a  new  one  es 
tablished.  The  first  act  does,  in  fact,  create  a  new  cor- 
poration ;  and  transfers  to  it  all  the  property  and  privileges 
of  the  old.  The  old  corporation  can,  in  no  sense,  be  said  to 
continue,  when  its  property  and  privileges,  of  every  kind, 
are  thus  taken  away,  and  transferred  to  another  corporation. 
The  trustees  and  overseers  of  Dartmouth  University  consti- 
tute a  corporation,  if  th*»  acts  are  effectual  for  any  purpose  ; 


30  DARTMOUTH  COLLEGE  VS.  WOODWARD. 

and  that  corporation  is,  essentially,  different,  from  the  cor- 
poration of  the  trustees  of  Dartmouth  College,  as  established 
by  the  charter. 

The  two  corporations  are  different  in  their  corporate 
names ;  in  (he  natural  persons  that  compose  them ;  in 
the  form  and  manner  of  their  organizations  ;  and  in  their 
rights  and  privileges.  The  old  corporation  consists  of 
twelve  trustees  ;  the  new  of  twenty  one  trustees,  and  twen- 
ty five  overseers.  In  the  old  corporation  the  trustees,  by 
filling  vacancies,  as  they  happened,  appointed  their  own  suc- 
cessors, and  enjoyed  and  exercised  all  the  privileges,  grant- 
ed by  their  charter,  and  were  subject  to  no  controul,  but 
that  of  the  law  of  the  land.  In  the  new  corporation,  the 
trustees,  in  rhcir  most  important  acts  and  doings,  are  subject 
to  the  controul  of  a  board  of  overseers,  dependent  for  their 
appointmenls  on  the  Governour  and  Council.  Subject  to  this 
controul,  the  new  trustees  have  all  the  rights  and  powers  of 
the  old  ;  and  they  have  also  other  most  important  rights  and 
powers,  which  the  old  trustees  never  had,  nor  claimed.  Of 
course,  new  duties  are  incurred,  correspondent  to  the  new- 
ly granted  rights. 

In  the  first  act  it  is  provided,  that  "  they  (i.  e.  the  new 
trustees)  and  their  successors,  in  that  capacity,  as  hereby 
constituted,  shall  respectively  forever  have,  hold,  use,  ex- 
ercise and  enjoy  all  the  powers,  authorities,  rights,  property, 
liberties, privileges  and  immunities,  which  have  hitherto  been 
posiessed,  enjoyed  and  used  by  the  trustees  of  Dartmouth 
College  ; — except  so  far  as  the  same  may  be  varied  or  lim- 
ited by  the  provisions  of  this  act.  And  they  shall  have 
power  (among  other  things)  to  organize  colleges  in  the  Uni- 
versity ;  to  establish  an  Institute,  and  elect  fellows  and 
members  thereof; — and  to  arrange,  invest  and  employ  the 
funds  of  the  University."  What  other  or  more  appropriate 
language  could  have  been  used,  if  the  old  trustees  had  sur- 
rendered their  charter,  and  the  legislature  had  intended  to 


SUPERIOR  COURT,  XEW-HAMPSHIRE.  31 

establish  a  new  institution,  to  supply  the  place,  and  enjoy 
all  the  property  and  privileges  of  the  old  corporation  ?  In 
an  act  for  that  purpose,  terms  could  not  have  been  used  more 
significant  and  appropriate,  than  those  contained  in  this  act. 
They  are  in  substance,  that  the  corporation,  as  hereby  es- 
tablished, shall  have  artd  enjoy  all  the  property  and  rights, 
which  have  hitherto  been  held  and  enjoyed  by  the  old  cor- 
poration ; — except  so  far  as  the  same  may  be  varied  or  lim- 
ited by  this  act. 

It  is  true,  Ihe  act  purports  to  include  the  old  trustees,  in 
the  new  corporation,  but  they  have  not  accepted  the  act, 
nor  consented  to  become  members  of  the  new  corporation, 
and  consequently  they  are  not  members.  For  they  can 
neither  be  compelled  to  become  members  of  the  new  corpo- 
ration, against  their  will  ;  nor  to  exercise  new  powers,  or 
submit  to  new  restrictions,  in  the  old  corporation.  It  was 
neither  expected,  nor  desired  that  the  old  trustees  should 
unite  with  the  new  ones.  The  intention  doubtless  was,  in 
this  indirect  way  to  abolish  the  old  corporation,  and  get  rid 
of  the  trustees.  The  manner,  in  which  the  injury  was  inflict- 
ed, does  not  lessen  the  grievance. 

But  if  it  should  be  held,  that  the  old  corporation  is  not,  ab- 
solutely, abolished,  it  could  avail  nothing,  in  support  of  the 
validity  of  the  acts.  For  the  legislature  is  no  more  compe- 
tent to  change,  and  essentially  alter  the  rights  of  the  plaint- 
iffs, than  to  abolish  them.  And  it  cannot  be  denied,  that 
the  acts  do,  in  many  particulars,  essentially,  affect  and 
alter  both  the  corporate,  and  individual  rights  and  powers 
of  the  old  trustees.  That  alterations  and  new  limitations 
are  imposed  is  admitted,  by  the  very  terms  of  the  first  act. 
The  new  trustees  are  to  enjoy  and  exercise  all  the  proper- 
ty, and  privileges,  which  had  been  enjoyed  and  exercised 
by  the  old  trustees, — except  so  far  as  the  same  may  bevari 
ed  or  limited  by  the  })rovisions  of  that  act. 

Before  the  passing  of   the  acts,    the   plaintiffs    were  sole 


32  DARTMOUTH  COLLEGE  V  S.  WOODWARD. 

owners  of  all  the  property,  acquired  under  (heir  charter,  and 
were,  alone,  entitled  to  exercise  all  the  privileges,  granted 
by  it.  By  the  acts,  others  are  admitted,  against  their  will, 
to  become  joint  owners  with  them,  of  the  property,  and  to 
a  joint  participation,  of  all  the  privileges.  This  forcible  in- 
trusion, under  pretence  of  joint  ownership,  violates  the 
plaintiffs'  rights,  as  essentially,  as  would  an  entire  ouster. 

The  whole  organization  of  the  corporation  is  changed. — 
Instead  of  oue  board,  consisting  of  twelve  members,  there 
are  two  boards, — one  of  twenty  one  members, — the  other  of 
twenty  five.  By  the  charter,  the  trustees  had  the  right  of 
making  all  suitable  regulations,  for  the  institution,  subject  to 
no  appeal.  By  the  acts,  all  the  votes,  and  doings  of  the 
trustees  may  be  negatived  by  the  overseers  ;  in  whose  ap- 
pointment, the  corporation  has  no  agency. 

Not  only  are  new  trustees  forced  in,  to  participate  with 
the  old  ones,  but  new  trusts,  and  new  duties  are  created. — 
An  Institute  and  new  colleges  are  to  be  established,  and  the 
fund*,  acquired  under  the  charter,  may  be  applied  to  their 
establishment  and  support. 

The  President  of  the  College,  a  member  of  the  old  cor- 
poration, held  his  office  and  salary,  dependent  on  the  twelve 
trustees  alone.  The  tenure  of  his  office  is  changed,  and 
he  is  now  dependent  on  others,  who  have  already  attempt- 
ed to  remove  him. 

If  the  legislature  can,  at  pleasure,  make  such  alterations 
and  changes,  in  the  rights  and  privileges  of  the  Plaintiffs,  it 
may  take  them  away  entirely.  If  a  part  may  be  destroyed 
or  taken  away  by  one  act,  the  rest  may,  by  an  other.  The 
same  power,  that  can  do  one,  can  do  the  other. 

I  shall  contend  for  the  Plaintiffs  that  these  acts  are  not 
obligatory  : 

I.  Because  they  are  not  within  the  general  scope  of  legis- 
lative power: 

II.  Because  they  violate  certain  provisions  of  the  consti- 
tution of  this  State,  restraining  the  legislative  power  : 


SUPERIOR  COURT,  NEW-HAMPSHIRE,  33 

111.  Because  they  violate  the  constitution  of  the  United 
States  : 

On  the  first  point,  the  attempt  will  be  to  show,  that  the 
legislature  would  not  have  been  competent  to  pass  these  acts, 
and  make  them  binding  on  the  plaintiffs,  without  their  as- 
sent, even  if  there  were  no  special  restrictions  on  the  power 
of  the  legislature,  either  in  the  constitution  of  this  state,  or 
of  the  United  Stales. 

Numerous  instances  have  occurred,  where  it  has  been  the 
duty  of  the  courts  of  law,  in  this  state,  as  well  as  in  most 
other  states  of  the  union,  to  examine  into  the  legality  of  the 
doings  of  their  respective  legislatures.  And  the  cases,  in 
which  the  courts  have  been  obliged  to  declare  legislative 
acts  unconstitutional  and  void,  are  vastly  more  numerous, 
than  judging  from  the  theory  of  our  governments,  was  ta 
have  been  expected.  As  the  constitutions  attempt  to 
define,  with  exactness,  the  powers  granted  to  each  depart- 
ment of  government,  it  might  have  been  expected,  had  not 
experience  shown  the  contrary,  that  each  department  would 
have  carefully  confined  itself,  within  its  prescribed  limits. 

The    celebrated   maxim    that   the  legislative,   executive, 
and  judicial  powers  of  government,  ought  to  be   kept  sepa- 
rate and  distinct,  and  be  vested  in  different  departments, was 
well  understood,  and  duly  appreciated,  at  the  time  of  form- 
ing 1  lie  constitution  of  this  slate  ;  and  is  recognized    and    a- 
dopted  in  the  37th  article  of  (he  bill   of  rights.       The    due 
observance  of  this  principle,  according  to  the  opinion  cf  tin 
i;'ost  celebrated  statesmen,  and  political  writers,  is  essential 
to  the  preservation  of  a  free  government.     "  There  can  be 
no  liberty,  where  the  legislative  and  executive  powers  arc  u- 
nited  in  the  same  person,    or  body  of  magistracy  :"  or,    "  il 
the  power  of  judging    be  not  separated    from  the  legislative 
and  executive  powers"(l).      Mr.   Madison,  speaking   of  tlilr 
principle,  says,    "  no  political    truth   is  certainly  of  greatc 

C.)  Monitsfj.  spirit  of  Laws,  II.  11- (J.  G.  1  Vol.  181. 
H 


34  DARTMOUTH  COLLEGE  VS.  WOODWARD. 

intrinsick  value,  or  is  stamped  with  the  authority  of  more 
enlightened  patrons  of  liberty."  "  The  accumulation  of  all 
powers,  legislative,  executive,  and  judiciary,  in  the  same 
hands,  whether  of  one,  a  few,  or  many,  and  whether  heredi- 
tary, self-appointed,  or  elective,  may  justly  be  pronounced 
the  very  definition  of  tyranny"(2). 

Incompliance  with  this  fundamental  principle  of  all  free 
governments,  our  constitution  has  erected  the  three  depart- 
ments, and  given  to  each  its  proper  powers. 

The  chief  labour  and  difficulty  has  always  been, to  keep  the 
legislative  power,  within  its  limits  :  and  to  protect  the  other 
departments  from  its  encroachments.  The  legislature  is  too 
numerous  to  be  restrained  by  considerations  of  individual 
responsibility.  Confident  in  its  influence  with  the  people,  it 
acts  with  a  boldness  and  intrepidity,  of  which  the  other  de- 
partments are  incapable.  This  is  the  united  opinion  of  the 
most  able  judges,  after  a  critical  examination  of  the  course 
and  tendency  of  our  governments.  "The  legislative  de- 
partment is  every  where,  extending  the  sphere  of  its  activi- 
ty, and  drawing  all  power  into  its  impetuous  vortex."  "  It 
is  against  tiie  enterprising  ambition  of  this  department,  that, 
the  people  ought  to  indulge  all  their  jealousy,  and  exhaust 
all  their  precautions"^).  Mr.  Hamilton  on  the  same  sub- 
ject says,  "we  have  seen,  that  the  tendency  of  republican 
governments  is,  to  an  aggrandizement  of  the  legislative,  at 
the  expense  of  the  other  departments'^^).  "  They  (the 
legislature)  have  accordingly,  in  many  instances,  decided 
rights,  which  should  have  been  left  to  judiciary  conl rover- 
»y"(5). 

Legislative  bodies   seem  to  consider  themselves  as  rep 
resenting,  exclusively,   the   sovereignty  of  the  people,  and 
as  having  the  right  to  exercise   any  power,    that   ihey  may 
deem  expedient,    unless  specially    prohibited.     It  is  o-ftea 

(-2)  47th  No.  of  Federalist. 
(.>)  4Sth  Xo.  of  Federalist. 
(i)  49th  Xo.  of  Federalist. 
'5)  Jefferson's  notes  on  Virginia,  IS*.'- 


SUPERIOR  COURT    NEW-HAMPSHIRE.  35 

gravely  contended,  that  the  legislature,  thus  representing 
the  people,  is  superior  to  the  other  branches  of  the  gov- 
ernment, and  that  it  may,  of  right,  exert  a  general  con- 
trouling  power  over  them.  Such  a  doctrine  is  entirely  in- 
consistent with  that  vital  principle  of  all  free  governments, 
that  the  three  great  powers  should  be  Jte.pt  separate  and 
independent. 

This  axiom  requires,  that  each  department  should  confine 
itself  to  the  powers  granted  to  it,  and  not  interfere  with,  nor 
exercise  those,  granted  to  the  other  departments.  No  in- 
terference whatever  ought  to  be  permitted,  except  where 
there  is,  by  the  constitution,  a  plain  delegation  of  power  ; 
as  in  the  instance  of  the  qualified  negative,  of  the  acts  of 
the  legislature,  by  the  Governour.  The  different  depart- 
ments are  co-ordinate,  independent,  and  equally  the  depos- 
itaries of  sovereign  power.  Each  has  what  was  delegated 
to  it,  by  the  people,  the  great  source  of  all  power,  and  nei- 
ther has  more.  Each  of  the  three  powers  is,  in  its  nature, 
sovereign,  within  its  proper  sphere  of  action.  Within  the 
limits,  prescribed  for  it,  the  judiciary  department  is  as  sub- 
stantially sovereign,  as  the  legislative  is  within  its  limits. 
And  the  Courts  of  justice  have  as  much  right,  to  enact  and 
promulgate  new  laws,  as  the  legislature  has  to  decide  pri- 
vate controversies.  For  there  is  no  more  ground  for  a  pre- 
tence, that  power  is  given,  by  the  constitution,  either  direct- 
ly, or  by  inference,  to  the  legislature  to  decide  on  matters  of 
private  right,  than  that  power  is  given  to  the  Courts,  to 
enact  general  statutes.  And  one  department,  whenever  it 
shall  attempt  to  act,  beyond  the  limits  of  its  authority,  is 
entitled  to  no  more  obedience  or  respect,  than  an  other 
would  be,  when  making  a  similar  attempt. 

The  Con«titution  of  this  State,  and  that  of  the  United 
States,  apparently  jealous  of  the  encroaching  tendency  of 
the  legislative  power,  have  not  only  defined  it,  with  caution 
and  exactness,  but  have  also,  in  many  instances,  where  from 


36  DARTMOUTH  COLLEGE  VS.  WOODWARD. 

former  experience,  the  greatest  danger  was  apprehended, 
guarded  it  with  special  prohibitions.  But  these  "parch- 
ment barriers"  will  have  little  effect,  unless  carefully  guard- 
ed, and  firmly  defended  by  the  judiciary.  The  powers  arc 
divided,  and  granted  to  separate  and  independent  depart- 
ments, to  the  end,  that  each  may,  in  its  turn,  be  checked 
and  restrained,  in  any  attempt,  to  exercise  powers  not  grant- 
ed to  it.  To  restrain  the  legislative  department,  from  over- 
leaping its  boundary,  the  chief  reliance  is  placed  on  the  Ju- 
diciary. 

That  the  Courts  of  law,  not  only  have  the  right,  but  are 
bound  to  entertain  questions,  and  decide,  on  the  constitu- 
tionality of  acts  of  the  legislature,  though  formerly  doubted, 
seems  to  be  now,  almost  universally,  admitted.  But  an  er- 
roneous opinion  still  prevails,  to  a  considerable  extent,  that 
the  courts,  in  the  discharge  of  this  great  and  important 
duty,  ought  to  act,  not  only  with  more  than  ordinary  de- 
liberation, but  even  with  a  degree  of  cautious  timidity.  The 
idea  is,  that  these  are  dangerous  subjects  for  Courts,  and 
that  they  ought  not  to  declare  acts  of  the  legislature  uncon- 
stitutional, unless  they  come  to  their  conclusion,  with  ab- 
solute certainty,  like  that  of  mathematical  demonstration ; 
and  where  the  reasons  are  so  manifest,  that  none  can  doubt. 
A  Court  of  law,  when  examining  the  doings  of  a  co-ordinate 
branch  of  the  government,  will  always  treat  it,  with  great 
decorum.  This  is  proper  in  itself,  and  necessary  to  pre- 
serve an  harmonious  understanding,  between  independent 
departments.  So  also,  it  ought  to  be,  after  the  most  care- 
ful deliberation  only,  that  a  proceeding  of  such  co-ordinate 
branch  should  be  pronounced  void.  Because  the  result  is 
always  important.  But  the  examination  is  to  be  pursued 
with  firmness,  and  the  final  decision,  as  in  other  cases,  must 
be  according  to  the  unbiased  dictate  of  the  understanding. 

An  act  of  the  legislature  must,  necessarily,  have  the  sanc- 
tion of  the  opinion  of  a  majority,  of  a  numerous  body   of 


SUPERIOR  COURT,  NEW-HAMPSHIRE.  3T 

men.  It  cannot  therefore  be  supposed,  that  the  reasons, 
against  the  validity  of  such  an  act,  will  ordinarily  be  so 
plain  and  obvious,  as  to  leave  no  manner  of  doubt.  To 
require  then,  that  Courts  shall  abstain,  from  declaring  acts 
of  the  legislature  invalid,  while  a  scruple  of  doubt  remains, 
is  nothing  less,  than  to  demand  a  surrender  of  their  jurisdic- 
tion in  this  particular  ;  in  the  due  exercise  of  which  consists 
the  chief,  if  not  only  efficient  security,  for  the  great  and 
fundamental  principle  of  our  free  governments.  Experience 
shows,  that  legislatures  are  in  the  constant  habit,  of  exerting 
their  power  to  its  utmost  extent.  They  intentionally  act  up 
to  the  very  verge  of  their  authority  :  and  are  seldom  restrain- 
ed by  doubts  or  timidity.  If  the  Courts,  fearing  a  conflict, 
adopt  a  course  directly  opposite,  by  abandoning  their  juris- 
diction, and  retiring,  whenever  a  plausible  ground  of  doubt 
can  be  suggested,  the  time  cannot  be  distant,  when  the  leg- 
islative department  "  will  draw  all  power  into  its  impetuous 
vortex." 

The  constitution  of  this  State  gives  to  the  Legislature  all 
legislative  power,  and  no  other,  that  has  any  relation  to  the 
matter,  under  consideration.  If  therefore  the  passing  of  the 
acts,  in  question,  be  not  within  the  general  scope  of  thelegiS' 
lative  power,  they  cannot  be  valid. 

The  acts  are  predicated  on  no  previous  proceedings  a- 
gainst  the  plaintiffs,  showing  any  misconduct  ;  but  the  at- 
tempt is,  by  a  mere  declaration  of  the  sovereign  will  of  the 
legislature,  to  take  from  the  plaintiffs  the  whole,  or  a  part, 
(and  it  makes  no  difference  which)  of  their  property  and 
privileges  ;  and  to  transfer  them  to  others.  That  cannot  be 
done  by  the  exercise  of  the  legislative  power.  That  pow- 
er is  confined  to  the  enacting  of  laws,  and  providing  the 
proper  ways  and  means  for  their  execution,  and  finds  there 
a  sufficiently  broad  field  of  operation.  Whenever  a  legisla 
ture  rightfully  performs  other  functions,  it  must  be  by  vir- 
tue of  special  poTer,  delegated  for   the  purpoae.     A  legis- 


■  I 


38  DARTMOUTH  COLLEGE  VS.    WOODWARD 

lattire  can  never,  by  virtue  of  i(s  general  legislative  power, 
interfere  in  questions  of  private  right.  A  legislature  within 
its  proper  sphere  of  action,  is  governed  by  its  discretion 
alone  ;  it  can  have  no  other  guide.  But  private  rights  are 
not  held  by  the  uncertain  tenure  of  arbitrary  discretion. — 
"  An  elective  despotism  was  not  the  government  we  fought 
for"  (6). 

The  security  of  private  rights  is  the  only  valuable  and 
important  advantage,  which  a  free  government  has  over  a 
despotick  one.  If  the  rights  of  individuals  must  be  liable  fo 
be  violated  by  despotick  power,  it  matters  not,  whether  that 
power  rests  in  the  hands  of  one,  or  many.  Numbers  im- 
pose no  restrain!,  and  afford  no  security.  Experience  has 
shown,  where  all  the  powers  of  government  have  been  unit- 
ed, that  their  being  exercised  by  a  numerous  assembly,  has 
afforded  to  private  rights,  no  security  against  the  grossest 
acts  of  violence  and  injustice. 

The  Legislature  can  make  laws,  by  which  private  rights 
may  become  forfeited.  But  the  Courts  of  justice  are  alone 
competent  to  adjudge  and  declare  the  forfeiture.  While  the 
legislative  and  judicial  powers  are  kept  separate,  it  can  never 
be  competent  for  the  legislature,  under  any  pretence  what- 
ever, to  take  property  from  one,  and  give  it  to  another,  or  in 
any  way  infringe  private  rights.  Were  that  permitted,  all 
questions  of  private  right  might  be  speedily  determined  by 
legislative  orders  and  decrees  ;  and  there  would  be  no  oc- 
casion for  Courts  of  law. 

The  deciding  on  matters  of  private  right  appertains,  plain- 
ly and  manifestly,  to  the  judiciary  department.  It  consti- 
tutes the  chief  labour  of  Courts  of  justice.  As  then  one 
department  cannot  exercise  the  powers  belonging  to  anoth_ 
er,  it  follows,  that  the  legislature  cannot,  rightfully,  assume 
any  part  of  this  jurisdiction,  thus  belonging  to  the  judicia- 
ry department.     The  province  of  the  legislature  is  to  pro- 

{6)  Jefferson's  notes  on  Virginia,  page  195. 


SUPERIOR  COURT,  NEW-HAMPSHIRE.  39 

Tide  laws,  and  <bat  of  the  Courts  to  decide  rights,  according 
to  the  laws.  Were  the  Courts  to  assume  the  power  of 
making  the  laws,  by  which  they  are  to  decide,  their  judg- 
ments would  be  arbitrary.  Because,  in  making  the  laws, 
they  could  have  no  other  rule  than  their  own  discretion. 
So  when  the  legislature,  whose  right  it  is  to  make  the  law, 
assumes  the  power  of  adjudicating,  the  separate  powers  of 
government  become  united,  and  a  despotism  is  created. 
And  accordingly,  it  will  be  generally  found,  that  where  legis- 
latures have  attempted  to  interfere  with  private  rights,  they 
have  decided  with  little  or  no  regard  to  existing  laws,  but 
according  to  their  own  arbitrary  discretion  ;  or  in  other 
words,  by  the  exercise  of  despotick  power. 

The  general  principle  may  be  safely  asserted,  that  no  vest- 
ed right  whatever  can  be  devested,  and  taken  away  from 
one,  and  transferred  to  another,  by  force  of  a  legislative  act, 
and  without  the  agency  of  a  Court  of  justice.  This  princi- 
ple is  clearly  established,  in  the  case  of  Vanhorne  vs.  Dor- 
sance.  2  Dal.  304.  A  vested  right  is  a  right,  acquired  and 
possessed  according  to  existing  laws.  Mr.  Justice  Ashurst 
calls  it  "  a  legal  right,  properly  vested  in  a  third  person,  or 
an  interest  legally  vested" (7).  All  rights,  legally  acquired, 
are  alike  protected.  The  right  to  possess  any  peculiar  priv- 
ilege, or  incorporeal  hereditament,  is  entitled  to  the  same  pro- 
tection, as  the  right  of  visible  property.  And  it  makes  no  dif- 
ference, whether  the  property  or  privilege  was  obtained,  by 
a  grant  from  the  State,  or  a  private  individual.  The  legisla- 
ture cannot  revoke  ils  own  grants.  Thus  land  granted  by  a 
legislature  becomes  private  property,  and  the  grantee  has  im- 
mediately all  the  rights  of  ownership.  And  the  agency  of 
the  legislature,  in  making  the  grant,  gives  it  no  authority  to 
interfere  with  any  rights,  which  the  grantee  derives  from  his 
grant(tV).  So  the  grant,  by  the  legislature  to  an  individual, 
of  a   particular  privilege,  gives  a  vested  right  to  the  cnjov- 

(7)  Kin- vs.  Amoiv,  '2.  T.  It.  56'J .— :i  Dal.  r<91. 
(81  Fli'tclicr  vs.  Peek.  6  C ranch  l'J  i. 


40  DARTMOUTH  COLLEGE  VS.  WOODWARD 

ment  of  thai  privilege.  It  has  been  decided  by  the  Supreme 
Court  of  the  United  States,  that  a  grant,  from  a  State,  of  a 
privilege  or  immunity,  that  certain  land  should  be  free  from 
taxation,  confers  a  right  on  the  owner,  which  the  legislature 
cannot  infringe(9).  Of  the  same  nature  are  grants  of  the 
privileges  of  keeping  publick  ferries,  or  erecting  bridges  and 
receiving  certain  tolls  therefor,  and  also  patents  for  new  and 
useful  inventions,  all  which  create  legal  or  vested  rights, 
which  cannot  be  taken  away  or  infringed  by  the  legislature. 

If  then  legal  rights,  vested  in  individuals,  cannot  be  tak- 
en away,  or  infringed  by  legislative  acts,  the  next  enquiry 
is  whether  the  Plaintiffs  have  any  such  rights,  which  can 
be  affected  by  the  acts  in  question. 

The  Plaintiffs  claim  to  have  legal  rights,  both  in  their 
corporate,  and  individual  capacities.  In  their  corporate 
capacity,  they  claim  the  franchise  of  being,  and  contin- 
uing to  be,  a  corporation,  and  the  right  to  possess  and  enjoy 
all  the  privileges,  granted  and  assured  to  them,  by  their  char- 
ter ;  and  among  others,  the  right  to  the  property,  acquired 
under  it.  In  their  individual  capacities,  they  claim  the 
right  to  be  members  of  the  corporation,  and  to  enjoy  all  the 
privileges,  accruing  to  them  from  being  members. 

That  many  corporations  have  legal  rights,  and  which  of 
course  cannot  be  abolished  or  infringed  by  the  Legislature, 
cannot  be  doubted.  It  will  not,  as  is  believed  be  contended, 
that  the  Legislature  can  abolish  incorporated  Banks  and  in- 
surance companies,  and  dispose  of  their  property,  at  pleas- 
ure. Such  corporations  clearly  have  vested  rights,  with 
which  the  legislature  cannot  interfere. 

There  are  corporations  of  different  kinds,  and  with  differ- 
ent incidents,  which  are  all  very  exactly  defined  by  law. 
To  ascertain  what  are  the  rights  of  the  corporation,  under 
consideration,  it  must  be  seen,  to  what  species  or  class  of 
corporations,  it  belongs,  and  what  are  the  incidents,  and 
rights  of  that  species  or  class. 

(9)  State  of  New-  Jersey  vs.  Wilson,  7  Crunch  16i. 


SUPERIOR  COURT,  NEW-HAMPSHIRE.  41 

The  only  division  of  corporations,  material  to  the  present 
enquiry,  is  that  of  civil  and  eleemosynary. 

Civil  corporations  are  constituted  for  the  purpose  of  gov- 
ernment ;  or  for  the  encouragement  of  trade,  and  commerce, 
or  such  like  purposes(lO).  Some  of  them  may  be,  with 
propriety,  and  often  are  called  publick  corporations.  The 
division  of  a  state,  into  counties  and  towns,  for  the  purpose 
of  civil  government,  creates  publick  corporations.  These 
sections  or  districts  are  organized,  for  the  purpose  of  exer- 
cising certain  functions  of  civil  government.  And  over 
these,  the  legislature  may  without  doubt  exercise  a  con- 
trouling  power,  to  a  certain  extent.  Other  civil  corpora- 
tions, established  for  the  promotion  of  commerce,  or  the  more 
convenient  management  of  pecuniary  concerns,  are  private, 
and  with  them  the  legislature  has  no  power  to  interfere. 

The  general  division  of  a  state  into  counties  and  towns,  as 
is  done  in  this,  and  the  other  states  of  New-England,  cre- 
ates corporations  of  a  peculiar  kind,  having  a  few  only  of  the 
ordinary  incidents  of  corporations.  In  this  State,  the  cor- 
porate privileges  of  towns,  with  few  exceptions,  are  confer- 
red and  limited  by  general  laws,  extending  equally  to  all.  A 
town,  like  a  county,  may  be  established  without  the  con- 
sent of  the  inhabitants,  who  may  be  compelled,  against  their 
wills,  to  become  members  of  the  corporation.  In  this,  there 
is  nothing  unjust  or  arbitrary,  as  a  like  provision  extends  to 
all  the  inhabitants  of  the  state,  who  must  be  members  of 
some  town,  and  County  Corporation.  Although  the  privi- 
leges of  such  corporations  may,  in  a  certain  degree  be  sub- 
ject to  legislative  controu!,  it  by  no  means  follows,  that  the 
legislature  can,  rightfully,  take  from  any  such  corporation 
its  property,  and  transfer  it  to  another. 

Somewhat  similar  to  these,  are  incorporated  cities,  where 
all  within  certain  limits,  are  included,  and  made  members  of 
the  corporation.     But  where  there  is  a  special  frrant  of  pe 
HO1)  J  Wood.  482. 
7 


42  DARTMOUTH  COLLEGE  VS.  WOODWARD. 

culiar  privileges,  the  legislative  power  to  new-model,  or  con- 
troul  them,  if  admitted  at  all,  must  be  with  great  limita- 
tion. The  legislature  cannot  abolish  such  corporations,  or 
do  any  thing  equivalent  to  it.  As  far  as  the  privileges  are 
peculiar,  and  such  as  cannot  be  affected  by  a  general  law, 
applicable  to  all,  it  is  not  easy  to  see  on  what  principles  they 
can  be  essentially  changed  or  altered,  by  a  special  act  of  the 
legislature.  But  however  that  may  be,  if  the  legislature 
have  a  controuling  power,  over  such  corporations,  it  must 
be,  because  they  are  created,  for  the  purpose  of  civil  gov- 
ernment, and  are  publick  corporations.  And  consequently 
if  it  were  admitted,  that  such  power  could  be  exercised  over 
these  corporations,  it  would  not  follow,  that  it  might  be  so 
exercised  over  corporations  of  a  different  kind,  and  estab- 
lished for  different  purposes. 

An  eleemosynary  corporation  is  always  for  charitable  pur- 
poses. Its  design  is,  to  secure  the  applications  of  donations 
to  charitable  uses,  according  to  the  directions  of  the  donors. 
It  has  no  concern  with  the  civil  government  of  the  State, 
either  general,  or  local ;  nor  in  the  promotion  of  commerce, 
or  any  other  branch  of  business,  which  are  the  objects  of 
civil  corporations.  It  originates  in  private  bounty,  and  its 
privileges  are  granted,  for  the  purpose  of  perpetuating,  and 
securing  the  application  of  the  bounty,  to  the  objects  intend- 
ed. And  it  is  always  a  private,  in  contradistinction  to  pub- 
lick  corporations.  All  hospitals  are  eleemosynary  and  pri- 
vate corporations;  and  with  them  incorporated  Colleges  and 
Schools  arc  always  classed(ll). 

Hospitals  and  colleges  or  schools  are  always  classed 
together,  and  alone  constitute  eleemosynary  corporations. 
Professor  Wooddeson  says,  "  all  eleemosynary  corpor- 
ations may  I  believe  be  included,  under  the  name  of  hospi- 
tals, colleges  or  schools  ;  in  respect  of  visitation  there  seems 
no  discrimination  between  Colleges  and  Hospitals" (12). 
Colleges  established,  for  securing  the  means  of  instruction, 

(11)  1  Black.  ATI.— 1  Kyd  25. 
(I2-)  1  Wood.  474. 


SUPERIOR  COURT,  NEW-HAMPSHIRE.  43 

and  for  the  promotion  of  learning,  are  eleemosynary,  and 
private  corporations,  in  the  same  sense,  that  Hospitals  are, 
which  are  established,  for  securing  the  means  of  subsistence 
for  the  sick  and  poor.  The  object  of  eleemosynary  corpo- 
rations is  to  execute  the  wills  of  donors.  He,  who  gives  to 
a  charity,  may  surely  direct  the  uses,  to  which  his  bounty 
shall  be  applied. 

A  striking  mark  of  distinction,  between  civil  and  eleemos- 
ynary corporations,  is,  that  the  former  is  not,  and  the  latter 
is  subject  to  visitation.  There  can  be  no  private  visitors 
of  civil  corporations.  Their  disputes  are  determined,  and 
the  performance  of  their  duties  enforced,  in  courts  of  law. 
But  all  eleemosynary  corporations  have  visitors,  whose  right 
and  duty  it  is,  to  enforce  the  due  observance  of  the  regula- 
tions of  the  institution.  To  all  colleges  and  schools  for 
the  pnrpose  of  instruction,  visitation  is  a  necessary  incident, 
as  it  is  also  to  Hospitals.  This  is  laid  down  as  an  acknowl- 
edged principle,  by  all  elementary  writers,  and  appears  to 
be  universally  admitted  in  the  cases,  where  the  rights  of 
such  corporations  were  in  question"(13). 

"When  governours  are  appointed,  to  superintend  a  charity, 
they  are  in  all  cases  visitors  of  the  objects  of  the  charity;  when 
the  application  of  the  revenues  is  not  immediately  entrusted  to 
them,  they  are  also  visitors,  as  to  the  application  of  the  rev- 
enues ;  and  the  Court  of  chancery  has  no  jurisdiction  over 
them  ;  but  when  the  management  of,  and  application  of  the 
revenues  is  immediately  entrusted  to  them,  then  as  to  these 
they  are  subject  to  the  controul  of  that  Court"(14).  This 
is  the  manner,  in  which  the  plaintiffs  are  incorporated. 
They  are  therefore  themselves  visitors  of  the  corporation, 
as  to  the  objects  of  the  charity,  and  may  be  compelled 
faithfully  to  apply  the  revenues  to  those  objects. 

According  to  well  established  principles  then,  there  can 
be  no  doubt,  to  which  class  of  corporations,  the  one  in  ques- 
tion belongs.     It  is  clearly  an  eleemosynary  corporation,  and 

(13}  Phillips  vs.  Burr,  1  Lord  Rav.  5.— I  Burr.  200  —J  Black  4S2 
i  Hi  2  Kvd  195 


44  DARTMOUTH  COLLEGE  VS.  WOODWARD. 

of  consequence,  a  private  corporation.  It  may  be  safely 
asserted,  that  not  even  the  semblance  of  an  authority  can 
be  produced  to  support  a  contrary  opinion.  It  differs  from 
civil  and  publick  corporations,  in  all  those  particulars,  which 
are  supposed  to  give  the  legislature  a  right,  to  interfere  in 
their  concerns. 

This  being  a  private  corporation,  the  plaintiffs  have  legal 
rights,  and  interests,  which  cannot  be  taken  away  or  infring- 
ed, at  the  discretion  of  the  legislature.  The  rights  of  pri- 
vate corporations  are  entitled  to  the  same  protection  as  the 
rights  of  individuals.  A  corporation  is  created  for  the  pur- 
pose of  securing  and  perpetuating  rights.  It  is  admitted 
that  corporate  rights  must  originate,  in  a  grant  from  the 
state ;  they  are  nevertheless  legal  rights.  It  is  not  pretend- 
ed, that  the  legislature  can  resume  its  grants,  to  an  individu- 
al, of  either  property  or  privileges.  What  better  right  has 
it,  to  resume  its  grants,  to  a  private  corporation,  established 
to  administer  private  charity  ?  It  is  true,  the  expectation  of 
publick  benefit  was  the  inducement,  to  create  the  corpora- 
tion. And  in  the  present  case  that  expectation  has  not 
been  disappointed.  The  funds  have  been  duly  applied  to 
the  objects  designed,  or  if  not,  that  duty  can  be  enforced,  by 
the  Courts  of  J  ustice.  The  expectation  of  publick  benefit  is 
always  , the  inducement,  for  erecting  corporations  of  every 
kind.  -JOf  course,  if  they  answer  the  ends,  for  which  they 
are  established,  the  state  derives  advantages  from  them. 
But  it  does  not  follow,  that  all  their  property  and  privileg- 
es are  held  in  trust  for  the  publick,  and  that  the  legislature 
may  dispose  of  them,  among  the  other  publick  property,  at 
pleasure.  The  state  is  entitled,  to  all  the  benefits  and  ad- 
vantages, stipulated  for,  in  the  grant  of  incorporation,  and  to 
nothing  more.  The  state  has  an  interest,  that  the  proper- 
ty and  privileges  of  an  individual  should  be  used,  in  such 
a  manner  as  to  be  beneficial  to  the  publick.  Is  the  individ- 
ual therefore  a  trustee  for  the  publick,  and  may  the  legisla- 


SUPERIOR  COURT,  NEW-HAMPSHIRE.  45 

fure,  en  that  ground,  take  his  privileges,  into  their  own 
hands  ?  They  have  no  better  right  to  interfere,  with  private 
corporations,  under  pretence  of  their  being  publick  trusts. 

An  eleemosynary  corporation  is  the  means,  devised  by 
the  policy  of  the  law,  to  secure  the  fulfilment  of  the  will  of 
a  charitable  donor.  The  corporation  is  nothing  more,  than 
the  means  used  to  obtain  an  object;  and  can  the  law  be  just- 
ly charged,  with  the  absurdity  of  converting  the  means,  it 
has  thus  devised  into  an  engine  to  defeat  the  object  ?  Who 
would  found  an  eleemosynary  corporation,  or  give  it  property, 
for  the  purpose  of  securing  it,  for  a  special  charitable  use, 
knowing,  that  he  thereby,  subjected  his  property  to  any 
use,  that  a  legislature,  under  the  influence  of  momentary  pas- 
sion, or  prejudice,  might  prefer?  Very  different  is  the  pro- 
tection, which  the  law  affords  to  property,  given  to  charita- 
ble uses,  which  it  guards,  at  all  points,  with  the  most  vigi- 
lant caution.  It  wiil  carry  into  effect  devises  and  convey- 
ances, for  charitable  uses,  under  circumstances,  which  would 
render  them  void,  if  for  any  other  purpose. 

The  circumstance,  that  this  state  has  made  donations  to 
the  corporation,  does  not  alter  its  nature,  nor  lessen  or  de- 
stroy the  plaintiffs'  rights.  The  state,  like  other  donors, 
gave  on  such  conditions,  as  it  pleased  ;  and  like  other  do- 
nors, it  can  enforce  the  fulfilment  of  the  conditions.  The 
state  of  Vermont  also  made  donations,  and  would  thereby 
seem  to  have  as  much  power,  on  that  ground,  to  interfere 
with  the  concerns  of  the  corporation,  as  this  state  has.  In 
the  case  of  Terrett  &  al.  vs.  Taylor,  &  al.  where  the  at- 
tempt was,  by  a  legislative  act,  to  take  away  the  proper- 
ty of  the  episcopal  churches,  in  Virginia,  and  apply  it  to 
other  uses,  Judge  Story,  in  delivering  the  opinion  of  the 
Court,  says,  "Had  the  property  thus  acquired,  been  origin- 
ally granted  by  the  State,  or  the  King,  there  might  have 
been  some  colour,  and  it  would  have  been  but  a  colour,  for 
such  an  extraordinary  pretension" (l.r>^. 

r  15)  9  Crane h  iO. 


46       DARTMOUTH  COLLEGE  VS.  WOODWARD. 

It  is  impossible,  without  disregarding  all  established  prin- 
ciples and  authorities,  on  this  subject,  to  consider  a  private 
eleemosynary  corporation,  a  publick  trust,  and  its  members, 
publick  officers  of  the  state,  and  therefore  incapable  of  hav- 
ing any  rights,  of  the  character  of  private  rights. 

In  most  eleemosynary  corporal  ions, the  objects  of  the  char- 
ity, that  is  those  who  are  individually  to  receive  (he  benefit  of 
it,  arc  admitted  and  constituted  members  of  the  corporation. 
In  a  hospital,  incorporated  on  that  plan,  (he  poor  and  sick 
to  enjoy  the  benefit  of  the  charily,  must  be  admitted  mem- 
bers of  the  corporation.  Can  they  be  said,  to  hold  the 
property  and  privileges  of  the  corporation,  in  trust  for  the 
publick,  and  to  be  all  publick  officers  of  the  state  1  It  has 
never  been  supposed,  that  the  rights  of  a  corporation  so 
constituted  were,  in  relalion  to  the  publick,  different  from 
those  of  a  corporation,  constituled  as  ours  is. 

It  is  admitted,  the  plaintiffs  are  trustees  of  the  revenues 
of  the  corporation,  and  bound  to  apply  them  to  the  objects 
intended  to  be  provided  for,  and  that  this  trust  may  be  en- 
forced against  them.  But  this  is  a  private,  not  a  publick 
trust.  So  also  the  corporate  privileges  are  held  in  trust, 
partly  for  individual  members  of  the  corporation,  but  chief- 
ly for  those,  who,  though  not  members,  are  to  receive  the 
ultimate  benefit  of  the  charity.  But  although  the  plaintiffs 
hold  the  property  and  privileges  in  trust,  they  are  still  the 
legal  owners,  and  have  all  the  legal  righls  thereto  apper- 
taining. "When  a  trustee  asserts,  in  a  Court  of  law,  his 
right  to  properly,  conveyed  to  him  in  trust,  it  is  surely  no 
sufficient  answer,  to  tell  him  the  properly  is  designed  for 
the  use  and  benefit  of  others,  and  that  he  individually  suf- 
fers no  injury,  and  therefore  is  entitled  to  no  remedy.  The 
chief  design,  of  conveying  properly  in  trust,  is  to  constitute 
the  trustee  a  legal  protector  of  it  ;  because  the  cestui  que 
trust  is  generally  incompetent.  A  benefit  to  the  trustee 
personally  is  not  designed. 

The  Irue  principle  is,  that  a  trustee,  having  the  legal  right. 


SUPERIOR  COURT,  NEW-HAMPSHIRE.  47 

is  entitled  to  ali  its  remedies  ;  and  Courts  of  justice,  Instead 
of  restraining  Lira,  often  compel  him  to  exert  them.  Were; 
the  law  otherwise,  all  trust  property  would  lie  at  the  mercy 
of  every  invader.  The  cestui  que  trust  cannot  protect  it, 
because  not  the  legal  owner  ;  and  if  the  trustee  may  not,  it  is 
without  protection.  In  no  case  is  the  propriety  and  neces- 
sity, of  allowing  legal  protection  to  property,  in  the  hands  of 
trustees,  more  apparent,  than  in  that  of  corporations,  like  the 
present,  for  charitable  purposes.  For  it  is  most  manifest, 
the  charity  can,  in  no  other  way,  be  protected.  To  hold 
that  trustees,  on  the  ground  of  a  supposed  want  of  interest, 
are  incompetent  to  protect  the  subject  matter  of  the  trust, 
would  destroy,  not  only  all  charitable  corporations,  where 
trustees  are  introduced,  but  all  trusts  whatever. 

In  corporations,  for  the  promotion  of  commerce,  or  the 
management  of  mere  money  concerns,  it  is  not  necessar}', 
nor  always  the  case,  that  those,  who  contribute  the  funds, 
and  participate  in  the  profits,  should  be  members  of  the  cor- 
poration. Persons,  having  no  interest  in  the  funds,  may  be 
members  of  the  corporation,  and  hold  them  in  trust  for  those 
who  are  entitled  to  the  profits.  The  trustees,  in  such  a 
corporation,  would  unquestionably  be  competent  in  law,  to 
protect  all  its  rights. 

There  is  then  no  ground,  for  raising  such  an  interest  in 
the  state,  or  such  a  trust  for  those,  to  be  benefitted  by  the 
institution,  as  shall  defeat  ibe  plaintiffs'  rights.  This  is  a 
private  corporation,  and  of  that  kind  the  most  favoured  in 
law.  And  it  has  legal  rights,  if  any  corporation  can  have 
such  rights.  Any  principle,  which  can  be  assumed,  to  de- 
prive this  corporation  of  legal  rights,  will  be  equally  appli- 
cable to  every  other  corporation,  of  whatsoever  kind.  The 
most  private  corporation,  that  can  be  established  for  the 
purpose  of  trade,  or  the  management  of  money  concerns, 
can  make  out  no  better  claim  to  legal  rights.  A  corpora- 
tion, for  the  most  charitable  and  benevolent  purposes,  sure- 
ly has,  both  by  legal  principles,  and  according   to  the  com- 


48  DARTMOUTH  COLLEGE  VS.  WOODWARD. 

inoii  opinion  of  mankind,  rights,  as  inviolable,  as  those  of  & 
corporation,  for  the  purpose  of  commerce  and  traffick.  If 
these  acts  of  the  legislature  can  be  supported,  they  can  pass 
similar  acts,  in  relation  to  any  and  every  corporation.  It  is 
then  for  the  defendant  boldly  to  maintain,  that  no  corpora- 
tion has  legal  rights  ;  but  that  all  their  property,  and  pre- 
tended privileges  are  held,  at  the  mercy  of  the  legislature. 

Corporations  must  claim  all  their  rights,  by  virtue  of 
grants  from  the  state  ;  but  they  are  not,  for  that  reason, 
less  secure  or  inviolable,  than  similar  rights  of  individuals, 
derived  from  the  same  source.  Peculiar  privileges,  grant- 
ed by  the  state  to  individuals,  although  intended  to  pro- 
mote the  publick  interest,  become  vested  rights,  and  cannot 
be  resumed.  On  what  ground  rests  the  distinction  between 
these,  and  similar  privileges,  granted  to  private  corporations? 
There  is  no  secret  or  implied  condition,  to  a  grant,  or  char- 
ter of  incorporation,  that  it  may  be  revoked  or  annulled  by 
the  legislature,  whenever  it  pleases. 

The  British  Parliament  can,  as  it  is  held,  abolish  corpo- 
rations. So  it  can  pass  acts  of  attainder,  and  of  pains  and 
penalties.  But  neither  can  be  done,  by  virtue  of  the  ordi- 
nary and  legitimate  legislative  power,  which  belongs  to  our 
legislature.  According  to  the  theory  of  the  British  gov- 
ernment, the  Parliament  is  omnipotent.  "  A  corporation 
may  be  dissolved  by  act  of  Parliament  which  is  boundless, 
in  its  operations'^!  6).  In  modern  times  however,  the  ex- 
ercise of  these  extraordinary  powers,  which  are  entirely 
incompatible  with  the  existence  of  private  rights  of  any 
kind,  has  been  seldom  resorted  to. 

The  attempt  was  made,  by  the  Bill  introduced  into  Par- 
liament, in  the  year  1783,  by  Mr.  Fox,  for  new  modelling 
the  charter  of  the  East  India  Company.  The  attempt  was 
resisted  and  defeated.  The  city  of  London,  in  their  peti- 
tion against  the  bill  assert  "  that  it  was  not  only  a  high  and 
dangerous  violation  of  the  charters  of  the  Company,  but  a 

(10)  1  Black.  484. 


SUPERIOR  COURT,  NEW-HAMPSHIRE.  49 

total  subversion  of  all  the  principles  of  the  law  and  consti- 
tution of  that  country."  Lord  Thurlow  termed  it  "  a  most 
atrocious  violation  of  private  property,  which  cut  every  En- 
glishman to  the  bone*"  Mr.  Pitt  opposed  it,  as  being  "  a 
daring  violation  of  the  chartered  rights  of  the  Company"  (17). 
The  bill  did  not  pass.  But  the  attempt  was  so  strongly 
denounced,  by  publick  opinion,  that  it  ruined  the  party, 
which  made  it.  In  times  of  the  greatest  excess  of  arbi- 
trary power  in  England,  resort  was  seldom  had  to  this  un- 
limited power  of  Parliament.  The  great  attempt  to  destroy, 
or  controul  the  corporations,  in  the  reign  of  Charles  II.  was 
made  by  the  oppressive  use  of  judicial  proceeding,  through 
the  servility  of  dependent  judges.  The  charters  of  the  city 
of  London,  and  of  the  colonies  of  Massachusetts  and  Con- 
necticut, were  declared  forfeited  on  informations  of  quo 
warranto. 

But  whatever  be  (he  extent  of  this  undefined  and  arbitra- 
ry power,  of  the  British  Parliament,  I  trust  it  will  not  be 
contended,  that  it  has  descended  to  our  legislature.  The 
taking  away  of  the  colonial  charters,  under  colour  of  that 
power,  is  justly  classed  among  the  grievous  oppressions, 
which  led  to  our  independence.  "Chartered  rights"  were 
then  deemed,  of  too  sacred  a  nature,  to  be  voted  away,  as 
the  passions  or  caprice  of  a  legislature  might  incline.  Will 
it  now  be  asserted,  that  the  British  Parliament  or  King,  or 
both  united,  were  competent  to  abolish,  or  new  model  the 
colonial  Charters  1  If  it  could  be  done,  by  legislative  power 
alone,  they  might,  for  they  possessed  the  whole  legislative 
power  over  thai  subject  matter. 

In  the  opinion  of  the  Supreme  Court  of  the  United  States, 
in  the  case  of  Terrett  &  al.  vs.  Taylor  &  al.  before  mentioned, 
it  is  said,  "The  title  was  indefeasibly  vested  in  the  church- 
es, or  rather  in  their  legal  agents.  It  was  not  in  the  power 
©f  the  crown  to  seize  or  assume  il,  nor   of   the    Parliament 

(\7)  Parliamentary  Register  ITS.'',  4. 
'A 


iO  DARTMOUTH  COLLEGE  VS.  WOODWARD. 

unless  by  l!ie  exercise  of  a  power  (he   most  arbitrary,  com- 
pressive, and  unjust,    and   endured,  only    because  it  could 
not  be  resisted."     "The  dissolution  of  the  form  of  govern- 
ment did  not  involve  in  it  a  dissolution  of  civil  rights,  or  an 
abolition  of  the  common  law,   under  which  the  inheritances 
of  every   man   in   the   state  were  held.      The  State   itself 
succeeded   only   to  the  rights  of  the  crown"(I8).     If  the 
plainliifs  forfeited    none  of  these  rights,   by   the  revolution 
m   government,    the    legislature    had   no   more  power  over 
their  rights,  than  previously  existed,   in    the  hands  of  some 
depository  of  power.     The  Parliament  of  Great  Britain  had 
no  rightful  power  whatever  over  this  corporation.     The  le- 
gislature of  this   state  succeeded  to  all  the  power,  which  the 
King,  who  granted  the  charter  had,  and  to  no  more. 

Tn  England  the  creating  of  corporations  appertains  to  the 
King,  and  he  has  all  the  legitimate  power,  that  exists  for 
dissolving  them  ;  except  what  is  vested  in  the  judicial 
Courts(19).  He  can  institute  proceedings  in  the  Courts, 
and  for  just  cause  obtain  a  forfeiture  of  all  corporate  rights 
and  privileges  ;  and  then  regrant  them,  as  he  pleases.  He 
may  also  grant  charters,  to  old  corporations,  with  new  mod- 
ifications, which,  if  accepted,  are  binding.  All  this  may 
(he  legislature  of  this  state  do. 

But  the  King  cannot  abolish  a  corporation,  or  give  it  a 
new  organization,  or  alter  any  of  its  powers  or  privileges, 
without  its  consent.  This  is  the  well  established,  and  ac- 
knowledged doctrine  of  the  common  law(20).  On  the  ground 
that  the  King  cannot  resume  the  grant  of  a  corporate  privi- 
lege, it  is  held  that  the  giant  of  a  franchise,  already  granted, 
is  void (21).  The  King's  grants,  of  corporate  rights,  bind 
him,  as  much  as  his  grants  of  land.  When  therefore  he  has 
granted  such  rights,  he  cannot  resume  and  regrant  them,  till 
it  has  been  determined  by  due  trial,  in  a  Court  of  law,  that 
they  have  become  forfeited. 

(18)  OCVanehsn.  (i?)  ]  Black.  3.  472. 

l-Oj  ! K.n«r  «.  Amonr,   2  T.    R.   515.  Kins*  vs.   Pasmore,   3  T.  R.  24». 


SUPERIOR  COURT,  NEW-HAMPSHIRE.  51 

The  remedy  for  the  King,  in  such  case,  was  a  writ  of 
quo  warranto  :  in  place  of  which,  in  latter  times,  the  infor- 
mation of  quo  warranto  has  been  used,  as  being  more  con- 
venient. "A  writ  of  quo  warranto  (says  Judge  Blackstone) 
is  in  tbe  nature  of  a  writ  of  right,  for  the  King  against  him, 
who  claims  or  usurps  any  office,  franchise,  or  liberty  ;  to 
enquire  by  what  authority  he  supports  his  claim,  in  order  to 
determine  the  right.  It  lies  also,  in  the  case  of  the  non- 
user,  or  long  neglect  of  a  franchise,  or  misuser  or  abuse  of 
it."  "The  judgment,  on  a  writ  of  quo  warranto  being  in 
the  nature  of  a  writ  of  right,  is  final  and  conclusive  even 
against  the  crown"  (22).  So  far  then  from  resuming  his  grants 
of  corporate  rights,  at  pleasure,  the  King  was  obliged  to  try 
his  claim,  for  a  forfeiture,  like  any  other  person,  and  if  the 
determination  was  against  him,  the  corporation  was  secured 
in  the  quiet  enjoyment  of  them. 

Corporations  forfeit  their  rights,  by  non  user  or  misuser, 
and  are  to  be  vacated  by  trial  and  judgment (23).  Their 
powers  cannot  be  newly  modified,  or  altered,  without  thein 
consent.  In  case  of  the  offer  of  a  new  charter,  to  an  old 
corporation,  it  may  be  accepted  or  rejected,  as  the  corpora- 
tion pleases  ;  or  part  may  be  accepted,  and  part  rejected 
(24).  "  During  the  violent  proceedings,  that  took  place  in 
the  latter  end  of  the  reign  of  Charles  the  II.  it  was  among 
other  things,  thought  expedient  to  new  model  most  of  the 
corporation  towns,  in  the  kingdom  ;  for  which  purpose, 
many  of  those  bodies  were  persuaded  to  surrender  their 
charters,  and  informations  in  the  nature  of  quo  warranto  were 
brought  against  others,  upon  a  supposed  or  frequently  a 
real  forfeiture  of  their  franchises,  by  neglect  or  abuse  of 
them"(25).  Would  the  King,  in  those  violent  times  have 
taken  the  trouble,  of  resorting  to  the  Courts  of  law,  if  it  had 
been  supposed,    that  he  might  have  resumed   his  grants,  at 

(22)  3  Rlack.  202.  3.  2  his.  2S2. 

(23)  Thin?  vu.  Pasmor<>,  3  T.  R.  244.-9  Cranch  51. 

(24)  3  Kuir.  1050.—,;  T.  K.  2H>.  240 

(25)  3  Black.  203. 


J'Z 


DARTMOUTH  COLLKGtl  VS.  WOODWARD. 


pleasure.  There  was  no  pretence,  that  he  could  of  his  own 
authority,  anil  without  the  agency  of  the  Courts,  lawfully 
interfere  with,  or  controul  any  of  the  rights  of  corporations. 

As  successors  to  the  King,  then,  the  legislature  have  no 
power,  to  pass  the  acts  in  question.  And  it  may  be  safely 
asserted,  that  before  the  change  in  the  form  of  government, 
the  plaintiffs  could  not  have  been  rightfully  deprived  of  their 
property  or  privileges,  without  a  trial  in  due  course  of  law. 
Do  they  now  hold  their  rights  by  a  tenure  less  secure,  and 
more  subject  to  arbitrary  controul,  than  they  did  before  the 
revolution  ?  If  the  legislature  may  annul  or  repeal  grants 
of  corporate  privileges,  what  shall  restrain  them  from  doing 
the  same  with  grants  cf  land  ?  What  are  to  be  the  limits  of 
this  newly  discovered  authority  ?  Should  the  royal  grants 
of  land,  made  before  the  revolution,  be  examined,  more  in- 
stances of  heedless  extravagance  will  be  found,  than  in  any 
grants  of  corporate  privileges.  If  one  may  be  resumed,  so 
may  the  other,  for  they  both  rest  on  the  same  principles 
for  security. 

We  know  from  experience,  that  the  legislative  power  is 
of  an  encroaching  nature.  Permit  the  legislature,  in  this  in- 
stance, to  abolish  a  charter  of  corporate  privileges,  and 
there  will  be  no  ground  left,  on  which  they  can  be  restrain- 
ed, from  abolishing  patents  or  grants  of  land.  The  great 
principle  of  security,  for  private  property,  will  be  destroy- 
ed. And  let  it  be  remembered  that  the  attempt  to  vacate 
legal  rights  and  titles,  vested  in  individuals,  has,  in  fact, 
been  made  by  the  legislatures  of  more  than  one  of  the  states, 
in  the  Union.  The  only  means  of  security  is  to  abide  by 
settled  principles,  and  firmly  resist  the  first  attempt  at  en- 
croachment. The  law  affords  the  same  security  and  protec- 
tion, for  the  enjoyment  of  franchises  or  privileges,  as  it  does 
for  other  rights.  An  action  for  a  disturbance  of  a  franchise 
or  privilege,  is  well  known  in  law,  and  may  be  as  easily 
maintained,  either  by  an  individual,  or  a  corporation,  as  for 
any  other  injury. 


SUPERIOR  COURT,  NEW-HAMPSHIRE.  53 

A.S  then  a  grant  of  privileges,  to  an  individual  creates  le- 
gal rights,  which  cannot  be  infringed  by  legislative  acts  ; 
and  as  there  is  no  distinction,  known  in  law,  as  to  the  effect 
of  such  a  grant,  when  made  to  an  individual,  and  when 
made  to  a  private  corporation,  it  follows,  that  the  grant  to 
the  plaintiffs  created  legal  rights,  that  were  duly  vested,  and 
which  of  course  cannot  be  infringed  by  the  legislative  acts 
in  question.  It  is  of  no  consequence,  as  it  respects  the 
right,  whether  the  privileges,  granted  to  the  plaintiffs  by 
their  charter,  are  valuable,  in  a  pecuniary  point  of  view,  or 
otherwise.  They  are  essentially  of  the  nature  of  private 
property,  and  consequently  entitled  to  protection,  like  oth- 
er private  property. 

The  plainliffs,  in  their  aggregate  capacity,  are  entitled  to 
the  franchise  of  being  a  corporation,  and  of  enjoying  all  the 
privileges  contained  in  their  charter,  according  to  its  provis- 
ions. The  President  of  the  College  is  entitled  to  the  quiet 
enjoyment  of  his  office,  with  all  the  privileges  and  perquis- 
ites incident  to  it.  And  so  also,  the  other  members  of  the 
corporation  are,  individually,  entitled  to  enjoy  their  respec- 
tive privileges.  In  Miller  vs.  Spateman,(26)  it  is  held, 
"  That  the  law  takes  notice,  that  the  natural  members  of  the 
corporation,  of  whom  the  corporation  consists,  are  not  stran- 
gers to  the  corporation,  but  are  the  parties  interested  in  all 
the  revenues  and  privileges  of  the  corporation,  of  which  they 
are  members."  A  corporation  may  take  a  grant  for  the 
benefit  of  their  particular  members."  In  the  celebrated  case 
of  Ashby  vs.  White,  where  an  individual  member  of  the 
corporation  sued  for  an  infringement  of  his  right  of  suffrage, 
to  which  he  was  entitled,  as  a  corporator,  among  the  reasons 
assigned  by  the  House  of  Lords  for  their  judgment,  it  is 
said  ;  "  The  inheritance  of  this  privilege  is  in  the  corpora- 
tion aggregate  ;  but  the  benefit,  possession,  and  exercise  is 
in  the  persons  of  those  who,  by  the  constitutions  of  those 
charters  are  appointed  to  elect.  And  in  all  cases,  where  a 
(2G)     i  Satinil.  3ii. 


:')4  DARTMOUTH  COLLEGE  VS.  WOODWARD. 

corporation  hath  such  a  privilege,  the  members  thereof,  in 
their  private  capacity,  have  the  benefit  and  enjoyment  there- 
of. It  appears  by  other  instances,  that  it  is  usual  and  prop- 
er for  corporations  to  have  interests  granted  them,  which 
enure  to  the  advantage  of  the  members,  in  their  private  ca- 
pacities"^). Many  cases  are  there  stated  of  actions  being 
maintained  for  the  violation  of  such  rights(28). 

Besides  the  right  of  the  President  to  his  office  and  emol- 
uments, each  individual  trustee  has  the  privilege  of  being  a 
member,  and  of  acting  according  to  the  provision  of  the 
charter,  in  all  matters,  relating  to  the  government  of  the  cor- 
poration, and  in  the  management  of  its  property,  and  in 
the  conducting  of  all  its  concerns.  These  privileges,  that 
the  members  of  the  corporation  hold,  in  their  private  capa- 
cities, constitute  vested  rights,  which  are  subject  to  no  con- 
troMl,  but  that  of  the  law  of  the  land. 

It  is  not  a  new  doctrine,  that  in  a  free  government,  the 
legislative  power,  without  any  direct  and  express  restric- 
tion, is  incompetent  io  abolish,  or  take  away  vested  rights. 
It  results  from  the  very  nature  and  design  of  a  free  govern- 
ment. This  is  plainly  and  forcibly  asserted  by  Judge  Chase, 
in  delivering  his  opinion,  in  the  case  of  Calder  vs.  Bull. 
"The  purposes,  for  which  men  enter  into  society,  will  deter- 
mine the  nature  and  terms  of  the  social  compact ;  and  as  they 
are  the  foundation  of  the  legislative  power,  they  will  decide 
what  are  the  proper  objects  of  it.  The  nature  and  ends  of 
legislative  power  will  limit  the  exercise  of  it.  An  act  of 
the  legislature,  (for  I  cannot  call  it  a  law)  contrary  to  the 
great  first  principles  of  the  social  compact,  cannot  be  consid- 
ered as  a  rightful  exercise  of  legislative  authority.  The 
obligation  of  a  law,  in  governments,  establishsed  on  express 
compact,  and  on  republican  principles,  must  be  determined 
by  the  nature  of  the  power,  on  which  it  is  founded."     "  A 

(27)  3  HatselPs  precedents,  221. 

128)  Walter  vs.  Hanger.  Moore.  832.— Broeks  Abr.  Corporation,  8.1 


SUPERIOR  COURT,  NEW-HAMPSIHRE.  55 

law  that  destroys  or  impairs  the  lawful  private  contracts  of. 
citizens  ;  a  law  that  makes  a  man  judge  in  his  own  cause  ; 
or  a  law  that  takes  property  from  A.  and  gives  it  to  B.  it  is 
against  all  reason  and  justice  for  a  people  to  entrust  a  leg- 
islature with  such  powers  ;  and  therefore  it  cannot  be  pre- 
sumed that  they  have  done  it.  The  genius,  the  nature,  and 
the  spirit  of  our  state  governments  amount  to  a  prohibition 
of  such  acts  of  legislation  ;  and  the  general  principles  of  law 
and  reason  forbid  them.  The  legislature  cannot  change  in- 
nocence into  guilt,  or  punish  innocence  as  a  crime  ;  or  vio- 
late the  right  of  an  antecedent  lawful  private  contract  ;  or 
the  right  of  private  property.  To  maintain  thai  our  fed- 
eral, or  stale  legislature  possesses  such  powers,  if  they  had 
not  been  expressly  restrained  would,  in  my  opinion,  be  a 
political  heresy,  altogether  inadmissible,  in  our  free  repub- 
lican governments"(29). 

If  then  a  correct  view  has  been  taken  of  the  powers  of 
the  legislature  and  of  the  rights  of  the  plaintiffs,  it  would 
not  have  been  competent  for  the  legislature  to  pass  these 
acts,  if  there  had  been  no  special  restrictions  on  the  legisla- 
tive power  ;  because  they  are  not  within  the  general  scope 
of  that  power,  and  consequently  void. 

II.  There  are  special  restrictions,  on  the  power  of  the  leg- 
islature, in  the  constitution  of  this  state,  which  these  acts 
violate. 

They  violate  thai  part  of  the  15th  article  of  the  bill  of 
rights,  which  provider,  "  that  no  subject  shall  be  arrested, 
imprisoned,  despoiled,  or  deprived  of  his  property,  immuni- 
ties, or  privileges,  put  out  of  the  protection  of  the  law,  ex- 
iled, or  deprived  of  his  life,  liberty,  or  estate  ;  but  by  judg- 
ment of  his  peers,  or  the  law  of  the  land."  If  these  acts  are 
valid,  the  plaintiffs  are  deprived  of  their  property,  and  of  the 
"  immunities  and  privileges,"  granted  to  them  by  their  char- 
ter, by  other  means,  than  the  judgment  of  their  peers,  or  the 

(W)  3  I)all  SS3 


56  DARTMOUTH  COLLEGE  VS.  WOODWARD. 

law  of  the  land.  The  acts  of  (he  legislature  take  away  their 
fights  and  privileges,  without  any  trial  whatever. 

This  provision  of  the  Bill  of  rights  was  unquestionably  de- 
signed to  restrain  the  legislature,  as  well  as  the  other  branch- 
es of  government,  from  all  arbitrary  interference  with  pri- 
vate rights.  It  was  adopted  from  magna  charta,  and  was 
justly  considered  by  our  forefathers,  long  before  the  forma- 
tion of  our  constitution,  as  constituting  the  most  efficient  se- 
curity of  their  rights  and  liberties. 

Lord  Coke,  in  his  commentary  on  magna  charta,  explains 
the  phrase  "by  the  law  of  the  land"  to  mean  "  by  due 
course  and  process  of  /aw."  That  is,  no  subject  shall  be 
deprived  of  his  property,  immunities,  or  privileges,  but  by 
judgment  of  his  peers,  or  by  due  course  and  process  of  law. 
This  then  surely  cannot  be  done  by  special  act  of  the  leg- 
islature, without  judgment  of  peers,  and  without  any  process 
of  law.  To  make  his  meaning  still  more  plain,  if  possible, 
that  Parliament  was  bound  by  this  provision  of  magna  char- 
ta, Lord  Coke  says,  "  against  this  ancient  and  fundamen- 
tal law,  and  in  the  face  thereof,  I  find  an  act  of  Parliament 
made,  &c. (30)  directing  certain  summary  and  arbitrary  pro- 
ceedings, by  colour  of  which  act,  shaking  ihisfundamental 
law,  it  is  not  credible  what  horrible  oppressions  and  exac- 
tions, to  the  undoing  o;  infinite  numbers  of  people,  were 
committed  by  Sir  Richard  Empson  and  Edmund  Dudley." 
"  and  the  ill  success  thereof,  and  the  fearful  ends  of  these 
two  oppressors,  should  deter  others  from  committing  the 
like  ;  and  should  admonish  Parliaments,  that  instead  of  this 
ordinary  and  precious  trial  per  legem  terrae,  they  bring 
not  in  absolute  and  partial  trials,  by  discretion"(31). 

It  is  sufficiently  apparent,  that  Lord  Coke  understood  this 
provision  to  extend  to,  and  bind  Parliament.  Hence  his 
complaint  that  Parliament   had   in  that  instance  violated  it, 

(30)  Stat.  11,  Hen.  7. 

(31)  2  Inst.  51, 


SUPERIOR  COURT,  NEW-HAMPSHIRE,  51 

by  dispensing  with  trials  according  to  the  law  of  the  land  ; 
and  authorizing,  in  certain  cases,  the  exaction  of  forfeitures, 
on  trials  by  the  arbitrary  discretion  of  magistrates.  For 
even  that  act  of  Parliament,  so  justly  denounced  for  its 
"  horrible  oppressions,"  did  not,  like  the  present  acts  of  our 
legislature,  attempt  to  devest,  and  take  away  private  rights, 
without  any  trial  at  all.  The  construction  of  the  provision 
has  always  been  according  to  Lord  Coke's  opinion.  It  has 
never  been  doubted,  that  Parliament  was  morally  bound  by 
it.  But  the  difficulty  in  England  has  been  that  Parliament, 
being  omnipotent,  in  all  matters  of  civil  institution,  is  too 
powerful  for  the  constitution,  and  cannot  be  restrained. 

The  same  construction  has  been  uniformly  given  to  this 
provision,  in  the  Courts  of  the  different  states  of  the  Union. 
The  Superior  Court  of  South  Carolina,  in  the  case  of  Bow- 
man vs.  Middleton, decided  that  an  act  of  the  colonial  legisla- 
ture of  1712,  taking  property  from  one,  and  vesting  it  in  an- 
other, without  trial  by  jury,  was  void  ;  because  it  infringed 
this  provision  of  magna  charta,  which  bound  the  legislature. 
They  say,  "that  the  plaintiffs  can  claim  no  title,  under  the 
act  in  question,  as  it  was  against  common  right,  as  well  as 
against  magna  charta,  to  take  away  the  freehold  of  one  man, 
and  vest  it  in  another  :  and  that  too  to  the  prejudice  of 
third  persons,  without  any  compensation,  or  even  a  trial,  by 
the  jury  of  the  country,  to  determine  the  right  in  question. 
That  the  act  was  therefore,  ipso  facto,  void.  That  no 
length  of  time  could  give  it  validity,  being  originally  found- 
ed on  erroneous  principles" (32).  In  a  subsequent  case,  in 
the  same  Court,  Waties,  J.  said  he  had  gone  into  a  long  in- 
vestigation of  the  technical  import  of  the  words  lex  terrae, 
"  that  they  meant  the  common  law,  and  ancient  statutes, 
down  to  the  time  of  Edward  II.  which  were  considered,  as 
part  of  the  common  law.  That  this  was  the  true  construc- 
tion, given  to  them,  by  all  the  commentators  on  magna  char- 
(32)  1  B*y.  252. 


.iU  DARTMOUTH  COLLEGE  VS.  WOODWARD 

fa  from  whence  they  were  adopted  by  (he  constitution  of 
South  Carolina.  If  the  lex  terrae  meant  anylaw,which  the 
legislature  might  pass,  the  legislature  would  be  authorized 
by  the  constitution,  to  destroy  the  right,  which  the  consti- 
tution had  expressly  declared  should  forever  be  inviolably 
preserved.  This  is  too  absurd  a  construction  to  be  the  true 
one.  He  understood  therefore  the  constitution  to  mean, 
that  no  freeman  shall  be  deprived  of  his  property,  but  by 
such  means,  as  are  authorized  by  the  ancient  common  law 
of  the  land.  According  to  this*  construction  the  right  of 
property  is  held  under  the  constitution,  and  not  at  the  will 
of  the  legislature"  Q&).  Of  the  same  import  is  the  opinion 
of  the  Supreme  Court  of  Massachusetts.  "If  this  (an  act 
of  the  legislature)  is  to  be  construed  a  disposal,  by  the  leg- 
islature, of  lands  owned  by  that  proprietary,  (under  which 
the  plaintiff  claimed)  or  by  any  individual,  claiming  by  their 
grant  or  allotment,  it  militates  directly,  with  a  well  known 
provision  of  magna  charla,  revived  and  enforced  in  the  bill 
of  rights,  prefixed  to  the  constitution  of  government,  for  this 
Commonwealth;  that  no  subject  shall  be  deprived  of  his 
property,  but  by  the  judgment  of  his  peers,  or  the  law  of 
the  land  $  not  any  private  and  special  statute,  for  the  pur- 
pose, but  that  taw,  which  affects  alike,  under  the  same  cir- 
cumstances, the  whole  territory  and  community" (34). 

This  provision  of  magna  chart  a  is  introduced  into  the  5th 
article  of  the  amendments  of  the  constitution  of  the  United 
States.  The  terms,  in  which  it  is  there  expressed,  show 
conclusively  that  it  was  understood  in  the  same  sense,  that 
we  contend  it  always  has  been  understood.  They  are,  that 
"no  person  shall  be  deprived  of  life,  liberty,  or  property, 
without  due  process  of  law."  This  is  manifestly  design- 
ed to  secure  a  trial,  according  to  the  established  laws  of  the 
land  ;  and  it  certainly  restrains  the  legislature,  from  depriv- 

(33)  2  Kay.  59. 

(34)  Little  vs.  Frost,  3  Mass.  R.  117. 


SUPERIOR  COURT,  NEW-HAMPSHIRE.  6$ 

ing  an  individual  of  his  life,  liberty,  and  property,  without 
such  trial.  The  two  phrases  "  law  of  the  land"  and  "due 
process  of  law,"  as  used  in  the  two  constitutions,  doubtless 
hare  the  same  meaning.  If  otherwise,  however,  the  result 
will  be  the  same.  For  the  legislature  of  this  state  is  as 
much  bound  by  this  provision,  in  the  constitution  of  the 
United  States,  as  they  would  be,  were  it  contained  in  our 
own  constitution.  If  the  plaintiffs  are  deprived  of  their 
property  by  tJie  acts  in  question,  it  certainly  has  not  been 
done  by  due  process  of  law.  The  law  provides  no  such 
summary  process,  by  which  individuals  may,  without  trial 
be  deprived  of  their  rights. 

Thus  has  this  provision  been  always  understood,  as  im- 
posing a  restraint  on  the  legislative  power,  from  the  time  it 
was  first  introduced  into  magna  charta,  down  to  the  present 
time.  It  has  been  incorporated  into  the  constitution  of 
most  of  the  states  of  the  Union,  and  it  is  believed,  that  not 
a  single  judge,  or  commentator,  either  before,  or  since  it 
was  introduced  into  our  constitution,  has  attempted  to  give 
it  a  different  meaning.  The  terms  used  are  general,  em- 
bracing the  legislature,  equally  with  the  other  departments 
of  government  ;  and  any  reaion,  which  can  be  assigned,  for 
excepting  the  legislature  from  this  restraint,  may,  with 
equal  force,  be  applied,  for  excepting  either,  or  both  Ihe 
other  departments.  Indeed  if  this  provision  were  not  ap* 
plicable  to  the  legislature,  it  would  be  idle  and  useless.  The 
previous  part  of  this  article  of  the  bill  of  rights,  together 
with  others,  regulating  the  manner  of  trials,  are  more  espe- 
cially designed,  to  restrain  the  judiciary.  This  seems  to  be 
the  only  provision,  to  be  found  in  the  constitution  of  this 
state,  against  the  legislature's  passing  special  acts,  for  the 
regulation  of  individual  cases.  It  restrains  the  legislature, 
from  passing  acts,  which  spend  their  force  on  one,  or  more 
individuals,  and  are  not  to  apply  to  others,  under  similar 
circumstances.  The  law  of  the  land  is  applicable  to  the 
community  at  large, 


£0  DARTMOUTH  COLLEGE  VS.  WOODWARD. 

The  greatest  if  not  only  effectual,  security,  against  legis- 
lative oppression,  is,  that  the  law  must  be  general,  embrac- 
ing all  under   like   circumstances,  and  including  the  legisla- 
tors among  the  rest.     An  oppressive  law,  applicable  to  the 
whole  community,  will  soon  be  repealed.      But  if  the  legis- 
lature, under  the  influence  of  prejudice,  or  passion,  to  which 
all  bodies  of  men,  however  constituted  or  selected,  are  occa- 
sionally subject,can  pass  acts,  havingthe  force  of  laws,to  apply 
to  a  soli'aryindividualonlyjhe  majr  be  destroyed, before  pub- 
lick  sympalhy  can  be  excited,  for  his  relief.  A  law,  according 
to  any  just  definition,  that  ever  has,  or  can  be  given  of  it,  must 
be  genera!  in  its  operation.     It  is  a  rule  of  conduct,  for  all, 
within    fhe    principle  it  establishes.     An  act  of  the  legisla- 
ting, prescribing  a  particular  rule,  for  the  government  of  one 
or  more  individuals,  therein  named,  would  not  have  the  force 
of  law,    but    would  be  void(35).     This  principle  is  not  in- 
consistent with  the  power  of  the  legislature  to  pass   private 
statutes.   Such  statute8!,  instead  of  taking  away,  confer  priv- 
ilege>3 ;  and  whatever  regulations  are  imposed,  in  considera- 
tion of  the  privileges  granted,  become  binding,  by  the  assent 
of  the  parties,  at  whose  application,  the  statutes  are  passed. 
If  this  construction,  which  baa  always    hitherto  been   put 
on  the  article  of  the  bill  of  rights,  under  consideration,   is  to 
be  still  abided  by,  it  is  conclusive  in  favour  of  the  plaintiffs. 
Their  charter  grants   them  certain    "  immunities    and  privi- 
leges."    This  article  provides,  in  effect,  that  {hey  shall  not 
be  deprived  of  these  "  immunities  and   privileges,"    but  by 
due  trial,  had  according  to  the  well  known  general    laws  of 
the  land,  which  are  binding  on  the  whole  community.     The 
acts  of  the   legislature,   which  are  made  for  the  purpose  of 
depriving  them  of  their  immunities    and  privileges,  without 
any  trial  whatever,  must  therefore  be  declared  to  be  void. 
These  acts  violate  also  the  23d  article  of  the  bill  of  rights, 
which  provides  fhat,    "  retrospective  laws  are  highly  injuri- 
ous, oppressive  and  unjust.     No  such  laws  therefore  should 
(35)  Holden  vs.  James,  11  Mass.  Rep.  39C. 


SUPERIOR  COURT,  NEW-HAMPSHIRE.  61 

be  made,  either  for  the  decision  of  civil  causes,  or  the  pun- 
ishment of  offences." 

T.!iere  can  be  no  ground  for  dispute,    as   to  what  consti- 
tutes a  retrospective  lav,'.    In  the  case  Calder  vs.  Bull,  Judge 
Chase  says,  "every  law,  that  takes  away,  or  impairs  rights, 
vested    agreeably    to    existing    laws,  is  retrospectivc''(36). 
The  correctness  of  tills  definition  of  retrospective  laws  has 
never    been    disputed,    as  is  known.     It  was  adopted,  and 
made  the  ground  of  decision,  in  the  case  of  the  Society  vs. 
Wheeler,  in  the  Circuit  Court  of  the  United  States,  in  this 
District.     In  the  very    able    opinion    there    delivered,  it  is 
said,  "  upon  principle,  every  statute,  which  takes  away,  or 
impairs  vested  rights,  acquired  under  existing  laws,  or  cre- 
ates a  neiv    obligation,    imposes  a  new    duly,    or  attaches  a 
new  disability,    in    respect  to  transactions  or  considerations 
already  past,  must  be  deemed  retrospective  ;  and  this  doc- 
trine  seems  fully  supported  by  authorities"  (37).     It  is   not 
only  against   natural   justice,    but   utterly  inconsistent  with 
every  correct  idea  of  a  law,  that  it  should  be  made  to  ope- 
rate retrospectively  on    past  actions,  and  vested  rights (38). 
This  article  prohibits  the  passing  of  retrospective  laws  of 
any  kind,  as  well  such  as  affect  the  rights  of  property,  and 
individual    privileges,    as    those,    made    for   the    punishing 
crimes.     The  latter,  which  are  generally  called  ex  post  fac- 
to laws,  and  which  are  no  more  unjust  than  the  former,  have 
been  denounced,  by  a  most  respectable   authority,  as  being 
a  more  unreasonable,  and  cruel  method  cf  ensnaring  people 
to  their  ruin,  than  that  adopted,  by  the  worst  of  the  Roman, 
emperors,  who  wrote  his  laws  in  a  small  character  and  hung 
them  up  on  high  pillars,  to  prevent  their  being  read(39). 

It  is  hoped,  that  it  has  been  already  sufficiently  shown, 
that  the  plaintiffs  have  vested  rights,  acquired  under  ex- 
isting laws.     If  so,  these  acts,  which  infringe    their  rights, 

(36)  .3  Hall.  .301. 

(.37)  J(.:.ll.  JOS. 

(:>H)  Dnsh  vs.  Vsri  Klonck.,  7  John  JR.  47" 

!■■,[')  1  Mack,  afi. 


6*2  nARTMOlTTH  COLLEGE  VS.  WOODWAAU. 

are  retrospective,  and  void.  The  plaintiff's  rights  were  per- 
fect and  complete.  They  were  in  the  full  enjoyment  of 
their  property  and  privileges,  and  by  no  existing  law,  could 
they  hare  been  ousted  or  molested.  If  this  article  does  not 
protect  such  rights,  it  is  not  easy  to  perceive  what  rights  are 
protected  by  it. 

The  37th  article  provides,  that  the  three  essential  powers 
of  government  "ought  to  be  kept,  as  separate  from,and  inde- 
pendent of  each  other,  as  the  nature  of  a  free  government 
will  admit,  or  as  is  consistent  with  that  chain  of  connection, 
which  binds  the  whole  fabrick  of  the  constitution  in  one  in- 
dissoluble bond  of  union  and  amity."  This  article  has  al- 
ready been  noticed,  as  bearing  on  the  general  powers  of  the 
legislature.  It  may  also,  with  propriety,  be  considered  as 
imposing  a  special  restraint  against,  the  legislature's  exer- 
cising judicial  power.  The  limitation,  with  which  this  great 
elementary  principle  is  adopted,  does  not,  in  any  degree, 
lessen  its  force,  in  relation  to  the  question  under  considera- 
tion. The  bill  of  rights  establishes  general  principles,  by 
which  the  constitution  of  government  was  formed,  and  ac- 
cording to  which,  it  is  to  be  construed.  The  three  depart- 
ments of  government  are  connected  together,  and  in  certain 
particulars,  dependent  on  each  other.  The  constitution  de- 
clares the  extent  of  this  connection  and  dependence.  Pow- 
ers are,  in  certain  cases  and  for  special  purposes,  given  to 
one  department,  which  partake  of  the  nature  of  the  general 
powers  of  an  other  department.  This  qualification  was  ne- 
cessary to  preserve  consistency  in  the  different  parts  of  the 
constitution.  For  the  conducting  of  impeachments,  for  in- 
stance, the  legislature  is  vested  with  judicial  power.  It 
would  therefore  have  been  absurd,  after  this  express  grant 
of  judicial  power,  in  that  case,  to  have  declared,  without 
qualification,  that  the  legislature  should  exercise  no  judicial 
power. 

By  the  proper  construction  of  this  article,  each  depart- 
ment is  restrained,  from  exercising  any  of  the  general  pow- 


SUPERIOR  COURT,  NEW-HAMPSHIRE.  63 

ers  of  another  department,  except  in  cases,  where  it  is  es- 
pecially authorized  by  the  constitution.  A  construction 
that  should  leave  each  department  at  liberty,  to  exercise  the 
powers  of  another,  whenever  it  might  deem  it  expedient, 
would  render  the  provision  of  the  article  useless.  Indeed 
the  language  admits  of  no  other  construction  than  that  be- 
fore stated.  Ti:e  substance  is,  that  the  three  powers  of 
government  shall  be  kept,  as  separate  and  independent,  as 
is  consistent,  with  the  nature  of  a  free  government,  and  the 
provisions  of  the  constitution.  The  free  government,  here 
meant,  is  doubtless  one,  where  the  rulers  have  no  powers, 
other  than  what  are  delegated  to  them,  by  the  people.  Is 
it  inconsistent  with  the  nature  of  such  a  government,  or  with 
the  provisions  of  our  constitution,  that  thclegislature  should 
abstain  from  the  exercise  of  judicial  power,  in  cases  where 
that  power  is  not  granted  to  them,  but  is  granted  to  another 
department?  We  have  already  seen,  that  no  free  govern- 
ment can  exist,  without  such  a  restraint  on  the  legislative 
power. 

Under  the  first  point,  it  was  shown,  that  the  general  leg- 
islative power  did  not  extend,  to  the  devesting  of  private 
rights,  and  that  the  passing  of  these  acts  which  take  from 
the  plaintiffs  their  rights,  and  give  them  to  others,  was  sub- 
stantially an  exercise  of  judicial  power.  That  the  legisla- 
ture did  not  examine  witnesses,  and  hear  the  parties,  before 
they  decided  on  their  rights,  shows  only  the  extent  of  the 
oppression,  and  the  total  incompetency  of  the  legislature  to 
exercise  judicial  power,  in  such  cases.  As  then  no  special 
authority  is  given  to  thclegislature,  to  exercisejudicial  pow- 
er, in  this  or  similar  cases,  the  acts  violate  also  this  article 
of  the  constitution. 

III.  It  is  contended  that  the  acts  violate  the  10th  section 
of  the  1st  article  of  the  constitution  of  the  United  States, 
which  provides  that  "no  state  shall  pass  any  bill  of  attain- 
der, ex  post  facto  law,  or  law  impairing  the  obligation  of 
rmtracts.'" 


ri  DAKTMOl  Til  COL1.KGE  VS.   VVOOMVAKD. 

Tiiis   comprehensive   provision  was  intended   as  well  k> 
supply  Hie  omissions  and  deficiencies,   in  (he    constitutions 
of  the  several  sinter, as  to  afford  an  addilional  and  uniform  se- 
nility, Cor  private  rights  throughout  the  United  States(40). 
The  charter  of  1709  is  a  contract,  within  the  true   mean- 
ing of  that  term,  as  used    in  the  constitution  of  the    United 
States.     Everv  grant,  whether  from  a  private  individual,  or 
from   a   state,   is  a  contract.     A    grant  from  a   state  being 
necessarily  made,  with  greatdeliberation  and  formality,  con- 
stitutes a   contract  of  the  most   solemn  nature.     It  is  of  fa- 
miliar knowledge,  that  a  grant  from  one  individual  to  anoth- 
er, either  of  lands,  or  of  incorporeal  rights,  amounts  in  legal 
estimation  to  a  contract.     In    like   manner,  a   similar  <rant 
from    a  state   to  an   individual,  constitutes   a  contract.     A 
stale  incurs  the  same  obligation  from  its  grant,  as  a   private 
individual  does  ;  and   it   has  no  more  power  to  abolish  its 
grants,  or  discharge   itself  from  their  obligation,  than  a  pri- 
vate individual  has.     No  just  government  can  desire  to  pos- 
sess such  power. 

That   a   grant   of  land,  by   a  state  to   an  individual,  is  a 
contract,  within  this  provision  of  the    constitution,  and  con- 
sequently cannot    be    annulled,  or   infringed,  by  any  act  of 
the  legislature  of  the  state,  has  been  expressly  decided,  by 
the  Supreme  Court    of  the    United    States,   in  the    case  of 
Fletcher  vf,.  Peck(41).     And  that  a  grant  of  privileges  and 
immunities,  by  a  state  to  an    individual,  constitutes   a  con- 
tract, lias  been  as  expressly  decided,  by  the  same  Court,  in 
tl.o  case   of  New-Jersey    vs.    Wilson (42).     In   the  latter 
case,  the  stale    of   New- Jersey  had  before    the  revolution 
made  a  grant  of  certain  lands,  with  the  special  immunity  or 
privilege,  that  they   should  forever   remain    free  from  taxa- 
tion.    The  stale  had  lately    taxed   the  lands.     The    decis- 
ion was,  1hdi  the  grant,  as  it   respected   this  immunity,  or 

(■iv.)  ■)}   \o.ofTit(I. 
U\y  ti  Ci-.i:  cli  ST. 
'"■  .'  7  Crunch  lf,i 


SUPERIOR  COURT,  NEW-HAMPSHIRE.  65 

privilege,  constituted  a  contract,  within  the  protection  of  the 
constitution,  and  that  the  state  of  New-Jersey  could  not, 
in  violation  of  their  contract,  tax  the  lauds.  That  Court 
having  the  right  to  determine,  in  the  last  resort,  the  con- 
struction of  the  constitution  of  the  United  States,  its  decis- 
ions must  be  conclusive,  and  binding  oa  all  other  Courts. 

So  patents  for  new  inventions,  grants  of  tolls,  and  of  all 
such  like  rights,  conferring  immunities  and  privileges,  con- 
stitute contracts,  within  the  meaning  of  the  constitution  of 
the  United  States.  If  there  be  any  question  remaining,  on 
this  point,  it  is  whether  a  grant  of  the  privilege  of  being  a 
corporation  differs  so  esseutially  from  grants  of  other  privi- 
leges, as  to  form  an  exception,  in  this  respect.  No  founda- 
tion for  any  such  distinction  is  perceived. 

In  the  case  of  Terrett  vs.  Taylor,(42)  it  is  held,  that  the 
legislature  of  a  state  cannot  repeal  statutes  creating  private 
corporations.  This  must  be  on  the  principle,  that  such 
statutes  constitute  contracts  ;  for  otherwise  they  might  be 
repealed.  The  "abolishing  of  the  original  grant  of  incorpo- 
ration, and  the  abolishing  of  the  grants  of  property,  or  new 
privileges,  subsequently  made  to  the  corporation,  are  in  that 
case,  supposed  to  be  alike  out  of  the  power  of  the  legisla- 
ture, and  rfor  the  same  reasons.  Because  all  such  grants 
are  contracts.  It  makes  no  difference,  whether  they  are  in 
the  form  of  statutes,  or  charters. 

That  a  grant  of  land,  to  a  private  corporation,  is  as  much 
a  contract,  as  a  similar  grant  to  an  individual,  will  hardly  be 
doubted.  A  corporation  is  a  person  in  law,  capable  of  con- 
tracting ;  and  if  such  grant,  when  made  to  a  natural  person, 
constitutes  a  contract,  no  reason  can  be  assigned,  why  it 
should  not,  when  made  to  a  corporation. 

The  legislature  of  this  state  has  granted  certain  lands  to 
the  corporatiou,  under  consideration,  which  they  cannot 
take  away  ;  because  the  grant  constitutes  a  contract,  and  is 

f42)  9  Crunch  4j 

10 


8tf  DARTMOUTH  COLLEGE  VS.  WOODWARD. 

therefore  protected,  by  the  constitution  of  the  United  States. 
Would  it  not  be  then  grossly  absurd  to  hold,  that  the  grant 
of  the  franchise,  or  privilege  of  being  a  corporation  does  not 
constitute  a  contract,  and  consequently,  that  the  legislature 
mav,  at  pleasure,  abolish  the  corporation  ;  and  then  take  to 
themselves  not  only  the  lands,  they  have  granted  to  it,  but 
also  all  the  other  property, and  privileges  of  the  corporation. 

The  charter,  constituting  the  plaintiffs  a  corporation,  and 
granting  them  certain  immunities  and  privileges,  is  as  com- 
plete a  contract,  as  a  grant  of  land  to  them  would  have  been. 
It  contains  all  the  common,  and  necessary  ingredients,  and 
qualities  of  a  contract  executed.  It  is  an  agreement  of  com- 
petent parties,  on  a  sufficient  consideration. 

There  can  be  no  doubt  that  there  were  competent  parties 
io  the  contract  :  the  King  of  one  side,  and  the  Trustees 
named  in  the  charter  of  the  other. 

There  was  also  an  agreement  of  parties.  The  granting  of 
(he  charter  by  one  party,  and  the  acceptance  of  it  by  the 
other,  affords  ample  evidence  of  an  agreement  of  the  par- 
ties. The  trustees,  by  accepting  it,  agreed  to  the  provis- 
ions and  stipulations  of  the  charter,  as  effectually  as  the 
Kins  did,  by  granting  it.  Unless  accepted  by  the  gran^ 
tees,  it  could  have  had  no  effect  or  operation.  A  grant  or 
charter  of  incorporation,  till  accepted  is  a  nullity.  That  ac- 
ceptance is  necessary  to  give  it  effect  is  too  well  established, 
to  admit  of  any  manner  of  doubt.  "  As  the  intention  of  the 
grant  of  incorporation  is  to  confer  some  benefit  on  the  gran- 
tees,, which  however  may  be  counterbalanced,  by  some  con- 
ditions, with  which,  it  is  accompanied,  it  has  become  an  es- 
tablished rule,  that  the  grant  must  be  accepted,  by  the  vol- 
untary consent  of  a  majority  of  those,  whom  it  is  intended  to 
incorporate,  otherwise  the  grant  mill  be  t>otcP(43).  The 
same  doctrine  may  be  found  in  the  reports  of  cases,  where 
this  point  has   been  incidentally  discussed.     For  it  seem* 

T4.3;  1  Kyd  Cy- 


SUPERIOR  C0TTRT,  NEW-HAMPSHIRE.  &? 

never  to  have  been  seriously  contended,  that  a  private  cor- 
poration could  be  established,  without  the  voluntary  consent 
of  the  corporators (44). 

The  acceptance  is  always  averred  in  pleading,  when  a 
right  is  derived  under  a  charter;  and  issue  may  be  taken  on 
the  fact  of  acceptance,  as  is  done  in  the  case  of  the  King  vs. 
Pasmore(45).  So  the  non  acceptance  may  be  averred,  to 
defeat  the  operation  of  a  charter(46).  Th'i3  shows  conclu- 
sively that  the  grant  is  a  contract,  and  not  a  law,  to  be  re- 
pealed at  the  pleasure  of  the  legislature.  Judge  Blackstone 
in  pointing  out  the  difference,  between  a  contract  and  a  law, 
says  "  In  compacts,  we  ourselves  determine,  and  promise 
what  shall  be  done,  before  we  are  obliged  to  do  it  ;  in  laws 
we  are  obliged  to  act,  without  ourselves  determining,  or 
promising  any  thing  at  all" (47). 

That  the  contract  was  made  on  a  sufficient  consideration, 
or  motive,  is  apparent,  from  the  recital  in  the  charter  of  the 
benefits  and  advantages  expected.  The  trustees,  by  ac- 
cepting the  charter,  completed  the  contract,  and  incurred 
an  obligation,  which,  they  say,  they  have  faithfully  per- 
formed. If  they  have  not,  the  law  affords  an  ample  reme- 
dy- 
It  is  impossible  to  have  any  just  or  correct  idea  of  a  cor- 
poration, without  considering  the  creation  of  it,  as  resting  in 
a  contract.  In  the  case  of  the  King  vs.  Pasmore,  Judge 
Buller  says  "  The  question  referred  by  the  jury,  for  the 
opinion  of  the  Court,  is  whether  the  letters  patent  were  or 
were  not  duly  accepted  by  the  persons,  to  whom  they  were 
granted"  "  And  I  do  not  know  how  to  reason  on  this  point 
better,  than  in  the  manner  urged  by  one  of  the  relators' 
council  ;  who  considered  the  grant  of  incorporation  to  be  a 

(44)  Rex  vs.  Vice  Chancellor  of  Cambridge,  3  Burr.  1656.— Newling  vs. 
Francis,  3  Term  R.  197.— King  ts.  Pawnorc,  S  TermR.  240.— Ellis  vr 
Marshall,  2  Mass.  R.  26> 

(45)  3T.R.  200. 

(46)  Ibid. 

'47)  1  Black,  is: 


68  DARTMOUTH  COLIAGR  VS.  WOODWARD. 

compact  between  the  crown  and  a  certain  number  of  indi- 
viduals" (IK).  A  grant,  by  one  part}',  and  an  acceptance 
of  it  by  the  other,  necessarily  involves  the  idea  of  a  con- 
tract ;  and  without  considering  it  as  a  contract,  there  can 
be  no  reasoning  about  it.  There  can  be  no  question,  wheth- 
er a  charter  of  incorporation,  be  of  the  nature  of  a  contract, 
that  cannot  be  repealed,  or  of  a  law,  that  may  be  repealed. 
If  a  law,  whence  the  necessity  or  propriety  of  acceptance 
by  the  grantees  ?  Must  a  law,  after  it  is  duly  enacted,  be 
accepted  or  assented  to  by  an  individual,  in  order  to  make 
it  binding  on  him  ? 

So  a  charter  of  incorporation  may  be  surrendered,  and  by 
the  surrender,  the  grantees  are  released  from  all  obligations 
arising  under  it.  Can  individuals,  in  that  manner  refease 
themselves,  from  the  obligations  imposed  on  them  by  a  law  ? 

If  then  the  charter,  creating  this  corporation,  must  ac- 
cording to  established  principles,  be  held  to  be  a  contract, 
within  the  meaning  of  the  constitution  of  the  United  States, 
the  plaintiffs  are  still  entitled  to  enjojr  all  the  privileges  and 
immunities,  thereby  assured  to  them.  And  consequently 
the  acts  of  the  legislature,  which  so  manifestly  impair  the 
obligation  of  that  contract,  by  violating  those  privileges  and 
immunities,  is  unconstitutional  and  void. 

It  is  not  easy  to  foresee  all  the  consequences,  of  adopting 
new  and  untried  principles.  It  might  be  worth  while  to 
consider,  for  a  moment  what  is  to  become  of  the  property 
of  a  private  corporation,  abolished  by  a  legislative  act.' — 
The  doctrine  of  the  law  is,  that  the  lands  of  a  corporation, 
in  case  of  a  dissolution,  by  whatever  means,  revert  to  the 
grantors.  If  the  old  corporation  is  abolished,  'what  shall 
prevent  the  grantors  or  their  heirs  from  asserting  their 
claims  to  the  lands,  which  have  been  granted  it  ?  Their 
right  would,  in  that  event,  seem  to  be  unquestionable.  Is 
then  another  strain  to  be  made,  on  the  principles  ofthecon- 

(48)  3  Term  R.  245. 


SUPERIOR  COURT,  NEW-HAMPSHIRE.  69 

stitution,  by  taking  away  from  (he  grantors  their  right,  to  the 
reversion  of  the  lands,  for  the  sake  of  vesting  them,  in  the 
new  corporation,  according  to  the  design  of  the  acts  in  ques- 
tion ?  But  it  must  be  remembered,  that  a  part  of  the  landed 
property  of  the  old  corporation,  and  that  not  the  least  valu- 
able>  is  situated  under  a  jurisdiction,  over  which  the  legisla- 
ture of  this  state,  has  no  controul.  Is  it  to  be  expected, 
that  (he  state  of  Vermont  will,  without  an  effort  to  assert  ils 
rights,  permit  lands,  lying  within  its  own  jurisdiction,  which 
it  gave  to  Dartmouth  College,  for  certain  uses,  to  be  trans 
ferred  to  another  institution,  and  converted  toother  uses  ? 

If  these  acts  are  held  to  be  valid  not  only  this  College, 
but  every  other  literary  and  charitable  institution  must 
become  subject  to  the  varying,  and  often  capricious  will, 
of  the  legislatures.  Their  revenues  will  be  blended  ,with 
the  publick  revenues,  and  liable  to  be  applied  to  any  use, 
which  the  emergency  of  occasions  may,  in  the  opinion  of  the 
legislatures,  require.  The  liberal  and  benevolent,  when  dis- 
posed to  aid  such  institutions,  can  have  no  security,  that 
their  donations  will  be  applied,  to  the  objects  intended.  A 
striking  instance  of  this  has  already  occurred.  The  individ- 
ual, at  whose  solicitation,  these  acts  were  passed,  in  a  de- 
vise of  property,  for  the  support  of  certain  professorships, 
in  the  newly  established  University,  fearing  that  some  future 
legislature  would  apply  his  donation,  to  other  purposes,  has 
expressly  provided,  in  case  these  acts  shall  be  "rendered  nu- 
gatory, be  altered,  or  repealed,  tmless  by  the  consent  of  the 
new  trustees,  as  now  constituted,"  that  his  devise  shall  there- 
by become  void  ;  and  the  property  be  transferred  to  other 
uses.  This  idle  attempt,  to  restrain  the  power  of  a  future 
legislature,  so  as  to  prevent  its  following  the  example,  now 
set,  shows  not  only  the  fears,  that  donations  will  be  misap- 
plied ;  but  also  the  impossibility  of  securing  them  to  any 
certain  use,  while  subject  to  ihr  arbitrary  (ontroul  of  a  leg 
islature. 


TO  DARTMOimi  college  vs.  woodward. 

The  attempted  innovation  would  affect  the  character  6T 
our  literary  institutions,  not  less  than  their  revenues.  To 
be  useful  and  respectable,  they  must  be  stable  and  indepen- 
dent. So  obvious  is  this,  that  in  most  countries,  under  ar- 
bitrary governments,  the  universities  and  literary  establish- 
ments, of  the  higher  order,  have  been  permitted  to  enjoy 
great  privileges,  with  as  much  independence,  as  could  con- 
sist with  the  nature  of  such  governments.  If  our  semina- 
ries of  learning  are  to  be  reduced,  to  a  state  of  servile  de- 
pendence on  the  legislatures,  and  are  to  be  new  modelled,  tj 
answer  the  occasional  purposes  of  prevailing  political  par- 
ties, all  hopes  of  their  future  usefulness  must  be  abandon- 
ed. 

In  the  early  settlement  of  New-England,  the  establish- 
ment of  Colleges  was  among  the  chief  cares  of  the  wisest 
and  best  men  of  that  period.  They  have  remained  to  the 
present  time,  substantially  on  the  same  ancient  model  ;  and 
Trith  scanty  means  have  been  eminently  useful.     The  pres- 

*  bold  experiment,  if  carried  into  effect,  will  probably 
terminate  in  their  final  destruction. 


Mr.  Sullivan. — The  ca3e,  presented  to  the  considera- 
tion of  the  Court,  is  not  that  of  a  private  corporation,  com- 
plaining that  the  legislature  had  oppressively  and  without 
a  trial  seized  on  property  held  to  its  own  use  ;  it  is  not  .the 
case  of  a  private  corporation  complaining  that  the  legisla- 
ture had  wantonly  deprived  it  of  any  means  of  acquiring 
property,  which  had,  at  any  time,  been  granted  to  it;  but  it 
is  the  case  of  a  publick  corporation,  created  expressly — 
created  exclusively  for  the  publick  interest,  complaining  that 
the  legislature,  the  guardians  of  that  interest,  have  under- 
taken, without  consent,  to  alter  and  amend  its  charter. 

Are  the  acts  to  amend  the  charter,  and  to  enlarge  and 
improve  the  corporation  of  Dartmouth  College,  constitution- 
al ?  This  is  the  question  to  be  decided  by  the  Court. 


SUPERIOR  COURT,  NEW-HAMPSHIRE.  H 

The  right  of  the  Court  to  declare  those  acts  of  the  legisla- 
ture, which  are  repugnant  to  the  constitution,  to  he  uncon^ 
stitutional  and  void,  is  not  denied.  If,  for  example,  the  leg- 
islature should  pass  an  ex  post  facto  law,  making  that  act  a 
crime,  which  was  innocent  at  the  time  of  its  being  done, 
it  would  be  not  only  right,  but  the  duty  of  the  Court  to 
pronounce  it  void.  When  the  constitution  prohibits  the 
passing  of  particular  laws,  and  the  legislature  does  pass  them, 
the  safety  of  the  people  requires,  that  the  Court  should  in- 
terpose and  prevent  their  operation.  While  it  is  agreed, 
that  the  Court  has  power  to  declare  every  act  of  the  legis- 
lature, which  violates  the  constitution,  to  be  unconstitution- 
al and  void  ;  it  must  also  be  agreed,  that  it  is  a  power, 
which  ought  never  to  be  exercised,  but  with  the  greatest 
caution.  It  is  important  to  the  peace  and  happiness  of  the 
community,  that  the  most  perfect  harmony  should  exist  be>» 
tween  the  different  departments  of  government.  The  ju- 
dicial department  should  never  pronounce  an  act,  deliberate- 
ly passed  by  the  legislature,  to  be  unconstitutional  in  a  case 
of  a  doubtful  nature;  its  repugnancy  to  the  constitution 
should  be  plain,  palpable,  indisputable,  in  order  to  justify 
such  a  decision.  Courts  will  presume,  that  every  act, 
which  is  passed,  comes  within  the  constitutional  powers  of 
the  legislature. 

I  shall  attempt,  in  the  first  place,  to  show,  that  the  Cor- 
poration of  Dartmouth  College  was  a  publick  corporation.  If 
it  was,  no  doubt  can  be  entertained,  as  to  the  right  of  the 
General  Court  to  alter  and  amend  its  charter;  in  such  a 
manner  as,  in  their  judgment,  would  best  promote  the  pub- 
lick  welfare. 

Whether  this  corporation  was  publick  or  private,  is  not  to 
be  determined  by  considerinsr,  whether  it  was  founded  or 
endowed  by  the  bounty  of  the  government  or  by  that  of  an 
individual. — It  is  said  by  Lord  Hardwir.ke,  that  "  it  is  (he 
cxtensivaiess  of  the  objects  to  be  benefitted,  that  constitutes. 


72  DARTMOUTH  COLbEGB  VS.  WOODWARD. 

»  charily  o  publick  or  a  private  one"(l).  Willi  equal  pro- 
priety it  may  be  asserted,  that  it  is  the  extensiveness  of  the 
objects  or  persons,  for  whose  benefit  a  corporation  is  creat- 
ed, that  shows  it  lo  be  of  the  one  description  or  the  other. 
A  corporation,  erected  for  the  benefit  of  its  own  members, 
holding  property  and  exercising  its  powers  and  franchises., 
for  I  heir  use  and  advantage  only,  is  private  ;  so  also,  is  a 
corporation,  holding  property  in  trust  for  a  number  of  indi- 
viduals, and  exercising  its  powers  and  franchises  for  the  ad- 
vanlage  of  those  individuals  alone  :  but  a  corporation,  cre- 
ated for  the  benefit  of  the  inhabitants  of  a  whole  State  or 
Province  ;  holding  property  for  their  use,  and  exercising 
all  ils  powers  and  franchises  for  their  advantage  is  a  publick 
corporation.  For  whose  benefit  was  Ibis  corporation  erect- 
ed 1  For  the  benefit  of  the  persons  composing  it,  or,  for  that 
of  the  publick?  Lei  the  charter  answer  the  questions.  The 
language  of  the  charter  is,  "  That  we  considering  the  prem- 
ises, and  being  willing  lo  encourage  the  laudable  and  charita- 
ble design  of  spreading  Christian  knowledge  among  the  sav- 
ages of  our  American  wilderness,  and  also,  that  the  best 
means  of  education  be  established  in  our  Province  of  New- 
Hampshire /or //ie  benefit  of  said  Province,  do  of  our  spe- 
cial grace,  certain  knowledge,  and  mere  motion,  by  and  with 
the  advice  of  our  Council  for  said  Province,  by  these  pres- 
ents will,  ordain,  grant,  and  constitute,  that  there  be  a  Col- 
lege, erected  in  our  said  Province  of  New-Hampshire,  by 
the  name  of  Dartmouth  College,  for  the  education  and 
instruction  of  youth  of  the  Indian  tribes  in  this  land  in 
reading,  writing,  and  all  parts  of  learning,  which  shall  appear 
necessary  and  expedient  for  civilizing  and  christianizing 
children  of  pagans,  as  well  as  in  all  liberal  arts  and  sciences  ; 
and  also  of  English  youth  and  any  others.  And  the  Trus- 
tees of  said  College  may  and  shall  be  one  body  corporate 
and  politick  in  deed,  action,  and  name,  and  shall  be  called, 
fl)  a  Atkyns.  8i>. 


SUPERIOR  COURT,  NEW-HAMPSHIRE.  73 

named,  and  distinguished  by  the  name  of  the  Trustees  of 
Dartmouth  College."  This  corporation,  then,  as  its  char- 
ter shows,  was  established,  not  for  the  advantage  of  the 
corporators  ;  not  for  the  advantage  of  a  small  number  of 
individuals  ;  but  for  the  benefit  of  the  whole  people  cf  the 
Province  of  New-Hampshire. 

As  the  end,  for  which  private  corporations  are  establish- 
ed, is  the  benefit  of  individuals  ;  and  as  all  the  rights,  priv- 
ileges, and  franchises,  conferred  on  them,  are  granted  with, 
this  view  ;  individuals  have  always  a  direct,  a  beneficial  in- 
terest in  the  property  held  by  such  corporations  ;  an  inter- 
est which  they  may  transfer  to  others — which  may  be  taken 
for  their  debts — and  which,  in  the  event  of  their  death,  de- 
scends to  their  representatives.  But  as  the  end,  for  which 
this  corporation  was  erected,  was  to  promote  the  welfare  of 
the  whole  community  ;  as  all  its  rights,  privileges,  and  fran- 
chises were  granted  for  this  purpose,  neither  the  corpora- 
tors themselves,  nor  any  other  individuals  had  any  benefi- 
cial interest  in  the  property  held  by  the  corporation  ;  they 
had  no  interest  that  could  be  transferred  to  others  ;  none 
that  could  be  taken  for  their  debts  ;  none  that  could  de- 
scend to  their  representatives  in  case  of  their  death.  The 
corporation  was  a  mere  instrument  to  effect  the  important 
publick  purposes,  for  which  it  was  instituted. 

A  publick  corporation,  by  force  of  the  term,  whether  it 
has  the  government  or  an  individual  for  its  founder,  must 
mean  a  corporation  erected  for  the  publick  benefit. 

It  appears  from  the  charter,  that  the  corporation  of  Dart- 
mouth College  was  established  for  the  express,  the  avowed 
purpose  of  promoting  the  welfare  of  a  whole  Province.  It 
was  an  instrument,  formed  to  attain  objects,  in  which  no  in- 
dividual  had  a  particular  interest,  but  in  which  the  commu- 
nity had  a  deep  one.  It  was  vested  with  power  to  hold  prop- 
erty in  trust  for  the  publick,  but  it  could  hold  none  for  the 
nse  of  the  corporators.  It  was  clothed  with  various  pow 
11 


M  DAKTMOt'TH  COLLEGE  VS.  WOODVVAttU. 

ers,  capacilies,  and  franchises,  all  of  which  were  lo  be  ex- 
erciscd  for  the  benefit  of  Ihc  publick,  but  not  one  of  them: 
for  the  advantage  of  its  own  members,  or  of  any  individuals 
whatever,  In  short,  it  was  created — it  existed  only  for 
publick  purposes.  If  a  corporation  of  this  description  be  not 
a  publick  one,  then,  in  rr?y  opinion,  no  publick  corporation 
over  did,  or  ever  can  exist. 

If  this  corporation  was  a  publick  one,  the  right  of  the  Gene- 
ral Court  to  alter  and  amend  its  charter  must  be  clear.  All 
English  writers  who  treat  of  corporations.,  agree,  that  they 
maybe  dissolved  by  an  act  of  the  government('2).  If  the 
legislature  have  power  to  dissolve  corporations,  they  may, 
without  doubt,  alter  and  amend  their  charters.  Judge 
Swift  in  his  system  of  the  laws  of  Connecticut  observes, 
"  It  is  manifest  that  the  legislature  have  power  to  dissolve 
or  alter  all  corporations  of  a  publick  nature"  (3).  In  this  and 
in  other  states  of  the  Union,  publick  corporations  have  been 
altered,  modified,  enlarged,  and  restrained  in  almost  number- 
less instances,  and  the  right  of  the  legislatures  to  do  this 
cannot  justly  bb  questioned.  In  the  case  of  town  corpora- 
tions, whose  limits  arc  fixed  by  charier,  the  Genera!  Court 
has  repeatedly  altered  them.  Towns  have  besn  divided  i 
their  limits  have  been  contracted  or  enlarged.,  at  the  pleasure 
of  the  legislature,  against  the  will  and  the  remonstrances  of 
the  towns  interested.  The  limits  of  the  towns  of  St  rat  ham 
and  Newmarket  were  extended,  from  the  banks  lo  the  chan- 
nel of  Exeter  river,  in  order  to  subject  them  to  a  heavy  bur- 
then, while  the  towns  were  opposing  the  extension  with  their 
utmost  might.  The  town  of  Pembroke  aiTords  another  ex- 
ample of  the  exercise  of  this  power.  It  will  be  proper  to 
mention  the  circumstances  of  this  case,  because  the  right  of 
the  legislature  to  extend  the  limits  of  towns  was  considered 
by  the  Court. — Pembroke  was  indicted  for  not  repairing  a 
bridge  over  a  certain    river.     Their   defence  was,  that  the 

(2)  1  Hlnck.  Com.  4SS. — 2  Kvd  cm  Corporations.  4i~. 

(3)  1  Vol. '_\>». 


SUPERIOR  COURT,  NEW-HAMPSHIRE  <S 

bridge  was  not  within  their  limits,  as  fixed  by  their  act  or 
incorporation,  and,  of  course,  that  they  were  not  bound  to 
repair  it.  The  bridge,  as  it  appeared  from  the  evidence,  was 
over  a  river  between  the  towns  of  Pembroke  and  Allenalown, 
but  no  part  of  it  was  within  the  limits  of  either.  The  jury 
gave  a  verdict  for  the  towu.  Application  was  then  made  to 
the  General  Court,  to  extend  the  limits  of  Pembroke  so  far 
as  to  include  the  bridge.  This  was  done.  The  town  was 
again  indicted  for  not  repairing  the  bridge.  It  was  contend- 
ed on  their  part,  that  the  act  of  the  General  Court,  extending 
their  limits,  was  unconstitutional,  as  it  was  passed  not  only 
without  their  consent,  but  against  it  ;  and  in  order  to  sub- 
ject lhera  to  the  burthen  of  repairing  the  bridge.  But  the 
Court  decided  the  act  to  be  constitutional. 

The  limits  of  parishes  have  been  frequently  aitered.  Par- 
ticular individuals  with  their  estates  in  one  parish  have  been 
disanp.pxcd  and  annexed  to  another,  thereby  constituting  a 
poll  parish.  This,  as  the  Supreme  Court  in  Massachusetts 
say,  in  the  case  of  Colburn  against  Ellis  &  al.(--l)  "  I*  in 
fact  a  permanent  alteration  of  the  limits  of  the  parish,  so  far 
as  to  include  the  lands,  owned  by  the  persons  disannexed  ;" 
and  the  Court  recognize  the  authority  of  the  legislature  to 
make  such  alterations. — Rights  and  privileges,  which  had 
long  been  exercised  and  enjoyed  by  towns  and  parishes, 
have,  by  acts  of  the  General  Court,  been  taken  from  them  ; 
new  duties  and  new  burthens  have  been  imposed  ;  while  no 
one  suspected,  that  the  legislature  transcended  (heir  consti- 
tutional powers.  It  is  apparent,  that  by  the  division  of  a 
town,  or  by  extending  its  limits,  very  serious  evils  may  be 
suffered.  By  a  division,  it  becomes  less  able  to  perforin 
many  of  its  corporate  duties  ;  by  extending  its  limits,  it  may 
often  become  liable  to  heavy  burthens,  not  contemplated  at 
the  time  of  its  incorporation.  When  the  limits  of  parishes  are 
altered,  they  must  always  be  subjected  to  inconveniences. 
a)  7  Mnss.  Rep.  sa 


76  BARTMOUTH  COLLEGE  VS.  WOODWARD. 

But  no  injury  whatever  can  possibly  arise  to  the  member* 
of  the  corporation  of  Dartmouth  College  by  an  alteration  of 
its  charter. 

If  this  corporation  was  a  private  one,  I  shall  contend  that 
(Jie  legislature  had  a  right  to  alter  its  charter,  so  far  as  the 
publick  good  required. 

In  this  country  the  supreme  object,  for  which  govern- 
ment was  instituted,  was  to  secure  the  happiness  of  .the 
people.  To  effect  an  end  so  important,  the  interest  of  indi- 
viduals and  of  corporations  must  yield  to  that  of  the  pub- 
lick.  On  this  principle,  the  legislature  often  take  the  proper* 
ty  of  individuals,  when  the  publick  good  requires  it  ;  they 
often  deprive  individuals  of  some  of  their  natural  rights, 
when  the  exercise  of  them  would  prove  detrimental.  Why 
may  they  not,  with  equal  right,  take  the  property  of  corpo- 
rations, when  the  publick  welfare  demands  it  1  Why  may 
they  not,  with  equal  propriety,  deprive  corporations  of 
some  of  their  rights  and  privileges,  when  the  exercise  of 
them  would  produce  mischief  to  the  Commonwealth?  Does 
the  law  guard  the  property  of  corporations,  with  more  vigi- 
lance, than  that  of  individuals  ?  Are  the  rights  of  the  form- 
er more  sacred  than  those  of  the  latter  ?  Shall  we  see,  with 
approbation,  the  property  and  rights  of  individuals  taken, 
when  the  good  of  society  requires  it,  and  shall  we  regard  it 
as  a  sacrilege,  to  take,  under  any  circumstances,  the  property 
or  the  rights  of  corporations  ?  The  law  does  not  protect  the 
property  or  the  rights  and  privileges  of  corporations,  with 
more  solicitude,  than  those  of  individuals.  Neither  law  nor 
justice  regards  the  rights  and  privileges  of  the  latter,  as  less 
sacred  than  those  of  the  former.  Suppose  the  lands  of  a 
private  corporation  are  wanted  for  a  fortification  or  an  ars- 
enal, may  ihey  not  be  taken  ?  Suppose  they  are  wanted  for 
a  highway  or  for  any  important  publick  purpose,  may  they 
not  be  taken  ?  Without  a  power  in  the  government  to  take 
the  property  and  the  rights  of  private  corporations,  as  well 


SUPERIOR  COURT,  NEW-HAMPSHIRE.  77 

as  those  of  individuals,  its  operations  would  often  be  ob- 
structed, and  the  safety  of  society  might  be  endangered — 
When  the  property  of  private  corporations  is  required  by 
the  good  of  the  community  ;  when  the  exercise  of  their 
rights  proves  injurious  to  society  ;  to  deny  to  the  legisla- 
ture the  power  of  taking  their  property  and  of  limiting  or 
depriving  them  of  their  rights,  is  to  depart  from  that  prin- 
ciple, which  has  been  mentioned,  and  which  is  the  founda- 
tion of  every  free  government  :  it  is  to  sacrifice  "  the  good 
of  the  many  to  that  of  the  few" — the  interest  of  the  publick 
to  that  of  every  little  corporation. 

The  legislatures  of  many  of  the  states,  perhaps  of  all  of 
them,  have  taken  from  private  corporations  some  of  their 
rights  and  privileges,  when  the  welfare  of  the  community 
has  required  it.  In  this  state  it  has  often  been  done — The 
New-Hampshire  Bank  made  some  of  its  bills  payable  ia 
Philadelphia;  The  General  Court  passed  an  act,  declaring 
that  after  a  certain  day  "  It  should  be  unlawful  for  any 
Banking  company  in  this  state,  by  themselves,  their  direct- 
ors, or  agents  to  issue  any  bank  bill  or  bank  note  payable 
at  any  other  place,  than  at  the  Bank  from  which  it  is  issu- 
ed"^). Every  Banking  company,  that  acted  in  violation 
of  this  law,  was  subjected  to  a  penalty  of  one  hundred  dol- 
lars for  each  offence.  The  New-Hampshire  Bank  had  a 
right,  by  its  charter,  to  make  its  bills  payable  in  Philadel- 
phia, or  New- York,  or  at  any  place  whatever.  The  act  pro- 
hibiting this,  was  an  alteration  of  its  charier,  as  much  as  if 
it  had  been  entitled,  an  act  to  alter  and  amend  the  charter 
of  the  New-Hampshire  Bank.  Yet  it  has  never  been  sug- 
gested, that  the  legislature  had  not  power,  by  the  constitu- 
tion, to  pass  the  law.  In  many  other  instances,  the  General 
Court  has  deprived  Banks  of  rights  conferred  on  them,  and 
in  effect,  altered  their  charters.  By  an  act  passed  in  J  una 
1807,(6)    Banks   were  forbidden  to   issue  bills,  which  were 


l)  State  I^nws,  '2H$. 
0)  State  l/a^v.  '.?«'; 


78  DARTMOUTH  COLLKCU  VS.  WOODWARD; 

not  payable  on  demand  and  to  bearer  ;  or  which  were  sub- 
ject to  any  condition.  Every  Bank,  existing  in  the  state  at 
the  time  when  this  law  was  passed,  had  a  right  by  its  char- 
ter to  make  its  bills  payable  at  a  future  day — to  order — and 
subject  to  conditions.  The  law,  depriving  Banks  of  these 
rights,  has  never  been  considered  as  repugnant  to  the  con- 
stitution. It  has  not  unfrequently  happened,  that  the  legis- 
latures of  those  statGs,  in  which  Banks  have  been  establish- 
ed, have  prohibited  their  passing  bills  under  certain  denom- 
inations. Thus,  the  General  Court  of  Massachusetts  in 
June  1799,  made  a  law,  that  no  Bank,  incorporated  by  the 
legislature  of  that  Commonwealth,  except  the  Nantucket 
Bank,  should  issue  any  notes  for  a  less  sum  than  five  dol- 
lars (7).  By  their  charters  they  had  a  right  to  issue  bills  of 
any  denomination.     This  law  deprived  them  of  that  right. 

The  General  Court  have  not  only  imposed  new  duties  on 
Banks,  but  have  added  heavy  penalties,  to  enforce  the  per- 
formance of  them.  By  an  act,  passed  in  June  1814,  the 
Directors  of  the  several  Banks  in  this  state  are  obliged  to 
make  returns  of  (ho  situation  of  their  respective  Banks,  an- 
nually, to  the  Governour  and  Council  ;  and  in  case  of  neglect 
or  refusal,  the  Banks  are  subjected  to  a  penalty  of  one  thous- 
and dollars. 

The  General  Court  of  Massachusetts  passed  a  law,  by 
which  all  the  Banks  within  the  Commonwealth  were  sub- 
jected to  a  penalty  of  two  per  cent,  a  month,  on  the  amount 
of  those  of  their  bills,  which  should  not  be  paid,  when  pre- 
sented for  payment.  An  action  was  commenced  against  the 
Penobscot  Bank  to  recover  the  amount  of  certain  bilk",  pre- 
sented for  payment,  but  which  were  not  paid  ;  and  also  to 
recover  tv:o  per  cent,  a  month  on  that  amount.  It  was  con- 
tended on  the  part  of  the  Bank,  that  the  law  was  unconsti- 
tutional. But  the  Court  recognized  the  authority  of  the  leg- 
islature to  make  it.  It  was,  say  the  Court,  "A  duty  in- 
cumbent on  the  legislature  to   pass   the   law,   and   this    the 

(7)  Mass.  \&\\9,  884. 


SUPERIOR  COURT,  XEW-IIAMPSIURE.  <  9 

father,  as  (iiese  corporations  derive  ail  their  powers  from 
legislative  grants"(8).  In  this  case  tlie  Court  recognize 
the  authority  of  (he  legislature,  to  superintend  corporations 
of  a  private  nature,  and  In  impose  penalties  upon  them  for 
not  performing  those  duties,  [he  neglect  of  which  produces 
mischief  to  society. — They  hold,  that  as  these  corporations 
derive  ail  their  powers  from  legislative  grants,  it  is  not  only 
the  right,  hut  the  duty  of  the  legislature  to  see  that  the 
Commonwealth  receives  no  detriment. 

It  would  be  easy  to  multiply  instances,  in  which  the  leg- 
islature of  this  s!;i!e,  and  those  of  other  states,  have  limit- 
ed the  powers  and  taken  t lie  rights  of  private  corporations, 
when  required  by  the  welfare  of  the  community. 

While  I  contend  that  the  General  Court  has  power,  to 
take  the  properly,  the  rights,  and  privileges  of  private  cor- 
porations, I  agree  that  ii  is  a  power,  which  ought  never  io 
be  exercised,  but  for  the  strongest  and  most  important  rea- 
sons. It  will,  however,  be  at  once  perceived,  that  the  rea- 
sons, which  require  such  extreme  caution  on  the  part  of  the 
legislature,  with  respect  to  private  corporations,  do  not  ex- 
ist in  this  case.  The  interest  of  the  legislature  is  not  the 
same  with  that  of  private  corporations  ;  their  interests  are 
always  separate  and  distinct,  and  may  sometimes  be  oppo- 
site. The  legislature  may  pass  a  law,  which,  by  depriving 
such  corporations  of  their  rights  and  privileges,  does  them 
an  essential  injury  ;  while  it  does  no  injury  whatever  to  the 
legislature.  But  no  law  can  be  made,  to  alter  the  charter' 
of  Dartmouth  College,  that  will  not  produce  as  much  mis- 
chief to  the  legislature  that  make  it,  if  the  law  prove  injuri- 
ous at  all,  as  to  (he  members  of  the  corporation.  In  this 
case,  therefore,  there  can  be  no  danger  that  the  legislature 
will  ever  abuse  their  power. 

It  is  alleged  lhat  these  acts  violate  the  constitution  of  the 
United  Slates.  When  a  charter  of  incorporation  is  grant- 
ed, (here  is   always,   it   is   said,    an  imp'ied  contract  on  the 

f8)$M:iM    R«p.  44 


80  DARTMOUTH  COLLEGE  VS.  WOODWARD. 

part  of  the  government,  that  the  charter  shall  not  be  altered 
without  the  consent  of  the  corporation;  that  the  constitu- 
tion of  the  United  States  provides,  that  no  state  shall  pass 
any  law  impairing  the  obligation  of  contracts  ;  that  to  alter 
the  charter  of  a  corporation  without  consent  would  impair 
the  obligation  of  a  contract,  into  which  the  government  had 
entered,  and  would,  consequently,  be  a  violation  of  the  con- 
stitution. 

The  idea,  that  when  a  charter  of  incorporation  is  granted, 
there  is  an  implied  contract  on  the  part  of  government,  that 
the  charter  shall  never  be  altered  without  consent,  is  whol- 
ly unfounded — it  is  visionary.  In  what  cases  does  the  law 
imply  a  contract?  In  those  cases  and  in  those  only,  in  which 
reason  and  justice  are  so  strongly  in  favour  of  it,  that  the  law 
presumes  the  contract  has  been  made.  Does  reason  or  doe3 
justice  say,  that  the  interests  of  a  whole  community  shall  suf- 
fer, for  the  benefit  of  a  small  number  of  individuals,  whose 
charter  of  incorporation  proves  injurious  ?  Suppose  a  num- 
ber of  individuals  should  say  to  the  legislature,  we  wish  you 
to  grant  us  an  act  of  incorporation,  and  to  enter  into  a  contract, 
that  however  prejudicial  the  charter  may  be  to  the  welfare  of 
the  publiek,  it  shall  never  be  altered  without  our  consent, 
would  the  legislature  incorporate  them  on  such  terms  ?  It  is 
impossible  to  believe  it.  Nothing  can  be  more  unreasonable 
than  to  assert,  that  the  law  implies  such  a  contract,  when 
every  man  must  perceive  that  the  legislature,  if  expressly 
requested,  would  never  make  such  an  one.  It  is  far  more 
reasonable  to  say,  that  where  a  number  of  individuals  are  in- 
corporated, there  is  an  implied  agreement  on  their  part,  that 
their  charter  may  be  altered  whenever  the  publiek  good  re- 
quires it  ;  than  that  the  government  makes  a  contract,  that 
it  never  shall  be  altered,  whatever  injuries  it  may  produce 
to  society. 

If  there  be  such  a  contract,  as  is  alleged,  that  the    legis- 
lature shall  never  alter  the  charter  of  this  corporation  with- 


SUPERIOR  COURT,  NEW-HAMPSHIRE  31 

out  its  consent,  with  whom  was  that  contract  made?  With 
the  King  of  Great  Britain.  It  will  not  be  pretended,  that  the 
King  had  more  power  to  restrain  the  legislature  by  his  con- 
tract from  making  such  an  alteration,  than  one  legislature  ha« 
to  restrain  by  its  contract  all  succeeding  legislatures.  If  il 
were  possible  for  the  General  Court  to  be  so  forgetful  of 
their  duty,  so  regardless  of  the  welfare  of  their  constituents, 
as  to  make  an  express  contract  of  such  a  nature  as  the  one 
said  to  exist  in  this  case,  it  would  be  unconstitutional  and 
void  ;  because  it  would  contravene  a  principle,  which  is 
the  very  basis  of  our  government.  No  legislature  has  pow 
er  to  agree,  that  the  interests  of  a  corporation  shall  be  pre- 
ferred to  those  of  the  publick.  One  legislature  has  no  author- 
ity to  agree  with  a  corporation,  that  no  succeeding  legisla- 
ture shall  take  its  property,  its  rights,  or  its  privileges,  al- 
though the  taking  of  them  may  be  loudly  demanded  by  the 
good  of  the  community.  The  legislature  have  no  more  pow- 
er to  make  a  contract  with  a  corporation,  that  it  shall  be  for- 
ever exempt  from  all  legislative  controul,  than  they  have  to 
make  such  an  one  with  an  individual. 

If  a  charter  of  incorporation  be  a  contract,  it  certainly  is 
not  such  a  contract,  as  comes  within  the  spirit  and  meaning 
of  that  article  in  the  constitution,  that  has  been  mentioned. 
In  order  to  determine  this,  it  will  only  be  necessary  to  en- 
quire, what  was  the  design  of  this  article?  What  were  the 
evils  that  it  was  intended  to  prevent?  Before  the  formation 
of  the  general  government,  the  legislatures  of  several  of  the 
states  passed  tender  acts,  instalment  lawn,  <vc  Where  in- 
dividuals had  made  contracts  to  pay  debts  in  specie,  laws 
were  enacted,  enabling  them  to  pay  in  depreciated  paper  ;  a 
ender  of  such  paper  discharged  the  debts.  In  some  of  the 
states,  laws  were  passed  providing,  that  if  debtors  should 
render  to  their  creditors  any  articles  of  personal  property, 
and  the  creditors  should  refuse  to  accept  them,  such  tender 
should  operate  as  an  extinguishment  of  the  debt  to  the 
12 


82  DARTMOUTH  COLLEGE  VS.  WOODWARD. 

amount  of  the  property  tendered.  Such  proceedings  were 
unjust ;  they  were  violations  of  the  principles  of  moral  obli- 
gation and  of  social  justice.  These  evils,  as  well  as  those 
arising  from  instalment  laws,  were  full  in  the  view  of  the 
framers  of  the  constitution.  Apprehensive  that  the  state 
legislatures  might,  at  some  future  period,  be  actuated  by  the 
same  illiberal  and  unjust  spirit,  that  led  to  the  passing  of 
these  laws,  they  determined  to  impose  such  checks  and  re- 
strictions, as  should  effectually  prevent  the  recurrence  of 
these  evils.  For  this  purpose,  they  made  the  prevision, 
that  no  state  should  pass  any  law  impairing  the  obligation 
of  contracts.  The  Supreme  Court  in  Massachusetts  have 
said,  that  this  was  the  design  of  the  provision.  "  The  arti- 
cle respecting  the  obligation  of  contracts  (say  the  Court) 
as  we  all  know,  was  provided  against  paper  money,  instal- 
ment laws,  &c.(9). 

I  am  aware,  that  the  Supreme  Court  of  the  United  States 
has  decided,  that  contracts,  made  by  a  state  as  well  as 
those  made  by  individuals,  are  within  the  meaning  of  this 
article.  But  the  cases,  in  which  they  have  so  decided, 
bear  no  analogy  to  the  present.  The  case  of  Fletcher  against 
Peck(lO)  was  not  the  case  of  an  implied,  but  of  an  express 
contract.  The  legislature  of  the  state  of  Georgia,  in  con- 
sideration of  a  large  sum  of  money,  sold  lands  to  certain  in- 
dividuals ;  the  court  decided,  that  a  succeeding  legislature 
had  no  right  to  repeal  the  law  by  which  these  lands  were  con- 
veyed.— The  case  of  Ihe  state  of  New-Jersey  against  Wil- 
son(ll)  is  unlike  this.  The  legislature  of  New-Jersey  wen 
desirous  of  extinguishing  the  claims  of  the  Indians,  to  cer- 
tain lands  lying  within  the  state.  For  this  purpose,  thej- 
agreed  to  purchase  other  lands  and  to  convey  them  to  the 
Indians;  they  passed  an  act,  declaring  that  the  lands  so 
purchased,  should  never  be  subject  to  any    tax.     fn  consid- 

(0)    9  Mass.  Rep.  300. 
10)  0  (Jranch  8/. 
(H)  7  C ranch  1  r> i. 


SUPERIOR  COURT,  NEW-HAMPSHIRE.  8* 

«ration  of  this  the  Indians  released  their  claims.  The  act, 
exempting  the  lands  from  the  payment  of  taxes,  was  repeal- 
ed, and  the  lands  were  taxed.  The  court  decided,  that  the 
repealing  act  violated  this  article  in  the  constitution.  These 
cases  only  show,  that  if  a  state  makes  a  grant  of  lands  for  a 
valuable  consideration,  the  legislature  of  such  state  cannot 
pass  an  act  to  repeal  the  law  by  which  the  lands  themselves 
or  any  privileges  annexed  to  them  are  granted.  Neither  of 
them  has  the  remotest  tendency  to  show,  that  a  charter  of 
incorporation  is  a  contract  within  the  meaning  of  the  consti- 
fution.     No  court  has  ever  so  decided. 

If,  when  a  charter  of  incorporation  is  granted,  any  altera- 
tion of  it,  without  the  consent  of  the  corporation,  impairs  the 
obligation  of  a  contract  within  the  meaning  of  the  constitu- 
tion of  the  United  States,  then  the  state  legislatures  have 
no  power  to  alter  the  limits  of  a  county — or  a  town — or 
a  parish.  Not  a  single  new  burthen — not  a  single  new  du- 
ty, can  they  impose  upon  either.  All  the  laws  of  this  state 
and  of  other  states  of  the  Union,  limiting  the  powers  and 
taking  the  rights  of  Banks  ;  imposing  new  duties  upon  them, 
and  subjecting  them  to  penalties  for  not  performing  those 
duties,  are  void.  Little  did  the  makers  of  these  laws  imag- 
ine, that  if  they  deprived  corporations  of  a  single  right  or 
privilege — if  they  limited  any  one  of  their  powers,  to  pre- 
vent the  publick  from  suffering  serious  and  distressing  evils, 
that  they  violated  the  constitution  of  the  United  States. — 
The  most  sharp  sighted  adversary  of  the  constitution  did 
not  perceive,  that  this  article  would  ever  prevent  the  state 
legislatures,  from  passing  such  laws  as  they  thought  proper, 
in  relation  to  the  civil  institutions  existing  within  the  states. 
If  this  be  the  true  construction  of  the  article,  and  it  had  been 
so  understood,  when  the  constitution  was  proposed  to  the 
consideration  of  the  people,  it  would  have  given  a  death 
blow  to  the  instrument. 

"  A  constitution  is  the  form  of  government  delineated  by 


84  DARTMOUTH  COLLEGE  VS.  WOOD  WARM. 

the  mighty  hand  of  the  people."  It  is  the  solemn  expres- 
sion of  their  will.  Their  intention  should  always  guide  in 
its  construction.  If  Courts  should  extend  its  operation  be- 
yond that  intention,  they  would  substitute  their  own  will,  in 
the  place  of  the  will  of  the  people.  They  might  in  this 
w*y,  convert  a  wise  and  salutary  provision  in  the  constitu- 
tion, into  an  instrument  of  injustice  and  oppression. 

In  order  to  ascertain  the  true  meaning  of  this  article  then, 
we  should  always  keep  in  view  the  intention  of  the  people — 
the  particular  evils  contemplated  by  them,  and  against  which 
they  designed  to  guard.  This  is  the  polar-star,  that  should 
direct  us  in  its  construction.  Without  this  rule  to  guide  us, 
such  an  extended  interpretation  may  be  given  to  this  provis- 
ion, as  to  despoil  the  state  legislatures  of  most  of  their 
powers.  They  may  be  left,  indeed,  with  the  empty  name 
of  sovereign,  but  with  scarcely  an  attribute  of  sovereignty. 
If  this  rule  be  disregarded,  the  time  may  come,  and  that 
time  may  not  be  distant,  when  it  will  be  denied  that  the 
state  legislatures  have  power  to  pass  any  law  for  the  limita- 
tion of  actions  founded  on  contracts.  It  might  be  contend- 
ed, that  they  have  no  authority  to  pass  such  a  limitation  act, 
with  far  more  plausibility,  than  that  they  have  no  authority 
to  alter  the  charter  of  a  corporation.  It  might  be  said,  that 
a  limitation  act  violates  the  constitution  of  the  United  States, 
because  it  not  only  impairs,  but  destroys  the  obligation  of 
contracts.  It  is  suggested,  that  there  is  a  distinction  be- 
tween the  obligation  of  a  contract,  and  the  remedy  given  by 
the  legislature  to  enforce  that  obligation  ;  that  the  remedy 
may  be  modified,  as  the  legislature  may  think  proper,  with- 
out impairing  the  obligation  of  the  contract.  Precarious  in- 
deed is  the  right  of  the  state  legislatures  to  pass  such  laws, 
if  that  right  has  no  better  foundation,  than  the  suggestion 
that  has  been  mentioned.  This  suggestion,  that  a  limita- 
tion act  is  only  the  modification  of  a  remedy  and  does  not 
impair  the  obligation  of  contracts,  is  entirely  unfounded,,  It 


SUPERIOR  COURT,  NEW-HAMPSHIRE.  85 

is  manifest,  that  the  obligation  of  one  party  to  perform  his 
contract  can  exist  only  in  consequence  of  the  remedy  est 
the  other  party  to  enforce  its  performance.  Take  from  ono 
party  his  remedy  to  compel  the  performance  of  a  contract, 
and  the  other  party  is  not  obliged  to  perform  it — his  obli- 
gation is  destroyed.  A  limitation  act  takes  away  all  rem- 
edy. 

It  is  further  said,  that  a  limitation  act  does  not  take 
away  the  remedy  of  the  creditor,  but  only  establishes,  that 
certain  circumstances  shall  be  evidence  that  the  contract 
has  been  performed.  This  suggestion  is  as  unfounded  as 
the  other.  Courts  of  law  say  expressly,  that  the  debt  ex- 
ists notwithstanding  the  statute  of  limitations,  but  that  the 
creditor  is  deprived  by  it  of  his  remedy(12).  But  what 
circumstances  does  the  law  establish,  as  evidence  of  the 
performance  of  the  contract?  There  can  be  no  circumstance 
from  which  performance  can  be  inferred,  but  the  acquies- 
cence of  the  creditor  beyond  the  period  of  limitation.  If 
this  be  evidence  of  performance,  then,  if  a  man  bring  an 
action  upon  a  note  of  more  than  six  years  standing,  the  de- 
fendant plead  the  general  issue,  and  a  verdict  pass  against 
him  ;  he  may  move  in  arrest  of  judgment  and  prevail  in  his 
motion  ;  because  the  acquiescence  of  the  plaintiff,  which  is 
proof  of  payment,  appears  on  the  record.  But  all  the  au- 
thorities agree,  that  a  motion  in  arrest  of  judgment  in  such 
a  case  could  not  prevail. 

In  order  that  the  estates  of  deceased  persons  may  be  set- 
tled, in  a  reasonable  time,  the  legislatures  of  the  different 
states  have  enacted  laws,  that  creditors,  who  do  not  exhib- 
it their  claims  against  such  estates,  within  limited  periods, 
shall  be  barred  from  recovering  them.  These  laws  impair 
the  obligation  of  contracts.  They  furnish  no  evidence, 
that  the  contracts  have   been  performed,  but    merely    take 

(12)  1   Saunder's  Rep.  283.  a  2  —  2  Sauti.  f, .».  r.  —  _  2  Pew  Williams  375. 
4  Gwil.  Hat.  -iS-i.--',  Bitrr  2C.V*. 


*J6  DARTMOUTH  COLLEGE  VS.  WOODWARD. 

,away  the  remedy  of  (hose  creditors,  who  neglect  to  exhib- 
it their  claims. 

The  legislatures  of  the  different  states  are  constantly 
making  laws  on  the  subject  of  contracts.  The  welfare  of 
the  people  requires  them  to  exercise  this  power.  The 
laws,  thus  passed  by  them,  frequently  affect  existing  con- 
tracts and  impair  their  obligation.  But  these  laws  must  all 
be  regarded,  as  repugnant  to  this  provision  in  the  constitu- 
tion unless  its  construction  be  limited  by  considering  the 
intention  of  the  people  ;  the  particular  evils  they  had  in 
view,  and  which  it  was  their  design  to  prevent. 

This  charter,  it  is  said,  is  a  grant ;  but  it  is  only  a  grant 
of  powers  for  publick  purposes.  The  trustees  were  publick 
agents.  If  the  legislature  should,  by  an  act  or  resolve,  ap- 
point a  number  of  individuals  as  agents,  for  the  purpose  of 
effecting  some  important  object  of  a  publick  nature,  every 
one  would  say,  that  they  might  take  from  these  agents  any 
powers  or  authorities,  that  had  been  granted,  or  might  con 
fer  any  new  ones  at  their  pleasure.  Suppose  the  legislature 
should  think  proper,  to  make  them  a  corporation,  for  the 
sole  purpose  of  better  promoting  the  object  in  yiew,  they 
would  be  agents  of  the  publick  still,  and  as  much  under  leg- 
islative controul  after  their  incorporation  as  before.  To  be- 
lieve the  contrary  is  to  suppose,  that  there  is  some  magick 
in  the  charter,  that  instantly  makes  the  deputy  superior  to 
his  principal ;  that  raises  the  servant  above  his  master.  If 
the  trustees  were  publick  agents,  and  the  General  Court  could 
not  limit,  or  take  any  powers  that  had  been  conferred  on 
them  without  violating  the  constitution  of  the  United  States, 
<hen  they  have  no  right  to  limit  or  take  any  powers,  grant- 
ed to  any  of  the  publick  servants,  without  a  violation  of  that 
instrument. 

It  is  remarked  by  Judge  Johnson  in  the  case  of  Fletcher 
vs.  Peck,  that  the  state  legislatures  pass  laws,  impairing 
the  obligation  of  contracts  ;  yet,  that   these  laws  appear  to 


SUPERIOR  COURT,  NEW-HAMPSHIRE.  8r 

be  within  the  most  correct  limits  of  legislative  powers,  and 
certainly  could  not  have  been  intended  to  be  affected  by 
this  constitutional  provision.  If  there  be  any  contracts,  the 
obligation  of  which  may  be  impaired  by  laws  made  by  a 
state,  without  violating  this  provision,  the  present  is  un- 
questionably of  the  number. — It  may  be  safely  affirmed, 
that  this  article  in  the  constitution  was  never  intended  to 
restrain  the  state  legislatures  from  passing  laws,  impairing 
the  obligation  of  any  contracts,  except  those  where  the  in- 
terests of  the  contracting  parlies  were  entirely  seperate  and 
distinct ;  so  that  a  law  might  be  passed  by  the  legislature 
Of  a  state,  which  would  operate  in  favour  of  one  of  the  par- 
ties to  the  contract,  while  it  operated  injuriously  and  op- 
pressively toward  the  other.  But  no  such  evil  can  possi- 
bly exist  in  this  case.  Here,  the  government  and  the  trus- 
tees have  no  seperate,  no  distinct  interests  to  guard — their 
interests  are  precisely  the  same.  The  purposes  of  this  in- 
corporation were  the  spreading  of  Christianity  and  the  dif- 
fusion of  knowledge  among  the  people.  The  legislature 
have  as  much  concern  in  these  important  purposes,  and  in 
the  prosperity  of  the  corporation  itself,  as  the  mean  of 
obtaining  them,  as  the  trustees  themselves.  No  ill-judged 
law,  altering  the  charter  of  this  corporation — and  doing  it 
an  injury,  can  do  more  mischief  to  the  trustees,  than  to  the 
legislature  that  make  it.  How,  in  such  a  case,  could  res- 
trictions, on  the  legislatures  of  the  states  be  contemplated  ? 
The  people  had  all  the  security,  that  could  be  required  or 
afforded.  Constitutions  written  on  parchment  or  on  paper 
may  be  disregarded  ;  oaths  may  be  forgotten  ;  responsibili- 
ty to  constituents  may  prove  insufficient  to  restrain  legisla 
tors  from  abusing  their  power ;  but,  when  the  interests  of 
legislators  are  united  with  those  of  the  objects  of  their  laws; 
when  bad  laws  will  produce  as  much  injury  to  those,  who 
make  them,  as  to  those,  on  whom  they  are  intended  to  ope 
rate,  there  is  the  most  perfect  security  that  such  laws  never 


!>»  DARTMOUTH  COLLEGE  VS.  WOUDW  AKD. 

will  be  made.  To  have  required  rest riel ions  on  the  leg- 
islatures of  the  slates,  in  such  a  case,  would  have  betrayed 
a  species  of  delirious  jealousy,  never  entertained  by  the 
reflecting  and  enlichlened  people  of  this  country. 

It  is  objected,  that  these  acts  are  repugnant  to  that  arti- 
cle in  our  bill  of  rights,  which  declares,  4<  that,  no  subject 
shall  be  arrested,  imprisoned,  despoiled,  or  deprived  of  his 
properly,  immunities,  or  privileges,  put  out  of  the  protec- 
tion of  the  law,  exiled,  or  deprived  of  his  life*  liberty,  or 
estate,  but  by  the  judgment  of  his  peers,  or  by  the  law  of 
the  land."  The  trustees  complain  that  they  have  been  de- 
prived of  their  properly.  But  what  property  was  this  arti- 
cle intended  to  protect?  It  was  unquestionably  that  prop- 
erty, in  which  a  man  has  a  direct,  a  beneficial  interest;  prop- 
erty which  he  holds  to  his  own  use  ;  and  for  which  he  is  en- 
titled to  a  compensation,  when  taken  from  him.  If  the  prop- 
erty, held  by  the  trustees,  has  been  taken  from  them,  which 
is  denied,  they  had  no  beneficial  interest  in  it ;  they  did 
not  hold  it  to  their  own  use  :  they  were  entitled  to  no  com- 
pensation for  its  loss.  Have  these  acts  made  the  trustees 
poorer  than  they  were  ?  This  cannot  be  pretended,  without 
accusing  them  of  a  breach  of  trust — of  appropriating  to  their 
own  use  properly  belonging  to  the  publick.  I  entertain  too 
high  a  respect  for  the  character  of  the  trustees  to  suggest 
or  to  believe  this.  Will  the  Irustees  avow,  that  they  be- 
lieve themselves  to  be  entitled  to  a  compensation  for  this 
property  ?  I  am  confident  they  will  not.  So  far  then,  as 
respects  the  taking  of  property,  they  complain  where  no  in- 
jury has  been  sustained. —But  how  far  does  this  article  pro- 
tect property,  in  which  a  man  has  a  beneficial  interest? 
So  far,  that  it  cannot  be  taken  from  him,  but  by  the  judg- 
ment of  his  peers  or  by  the  law  of  the  land.  Surely,  if 
the  property  of  a  corporation  or  of  an  individual  be  taken 
by  an  act  of  the  legislature,  it  is  taken  by  a  law  of  the  land. 
Every  government   has  power  to    take   private  propertyr 


SUPERIOR  COURT,  NEW-HAMPSHIRE.  89 

when  required  by  the  publick  good.  This  power  is  clearly 
recognized  by  the  twelfth  article  in  our  bill  of  rights.  It  is 
there  said,  "That  no  part  of  a  man's  property  shall  be  tak- 
en from  him  or  applied  to  publick  uses,  without  his  own  con- 
sent, or  that  of  the  representative  body  of  the  people."  It 
has  been  the  practice  of  the  General  Court,  ever  since  the 
adoption  of  the  constitution,  to  pass  laws  to  authorize  the 
taking  of  private  property  for  the  purpose  of  making  high- 
ways, turnpike  roads,  canals,  &.«.  and  their  right  to  do  it 
has  been  uniformly  recognized    by    our  courts  of  law. 

But  it  is  said,  that  the  General  Court  has  no  power  to  au- 
thorize the  taking  of  a  man's  property  by  a  private  act  ; 
that  it  can  be  done  only  by  publick,  standing  laws,  which 
must  operate  equally  on  all  the  citizens  of  the  state.  This 
is  extremely  incorrect.  The  act  to  regulate  the  extinguish- 
ing of  fires,  passed  in  April  1781,  authorizing  the  firewards 
of  the  town  of  Portsmouth  to  pull  down,  blow  up,  or  remove 
houses  or  other  buildings,  is  private.  All  our  acts,  creating 
turnpike  corporations,  canal  companies,  &c.  and  authorizing 
them  to  take  the  property  of  individuals,  are  private.  Our 
courts  have  always  regarded  them  as  laws  of  the  land.  In 
these  cases,  property  is  taken  from  the  owners  not  by  pub- 
lick, standing  laws,  operating  on  all  the  citizens  of  the  state, 
but  by  private  acts  operating  on  a  small  number  of  individ- 
uals. The  legislature  and  the  courts  of  this  state  are  coun- 
tenanced by  the  legislatures  and  the  courts  of  other  states, 
in  considering  such  private  acts  as  have  been  mentioned, 
as  laws  of  the  land.  The  constitution  of  Massachusetts 
has  precisely  the  same  provision,  as  that  mentioned  in  our 
bill  of  rights.  Yet  the  General  Court  of  that  Commonwealth 
has,  in  frequent  instances,  created  turnpike  corporations, 
canal  companies,  &.c.  and  authorized  them  to  take  the  prop- 
erty of  individuals.  Their  courts,  as  well  as  the  legisla- 
ture, have  always  considered  these  acts,  as  laws  of  the  land 
13 


90  DARTMOUTH  COLLEGE- VS.  WOODWARD. 

within  the  meaning  of  the  constitution.       They   have   been 
considered  in  other  states  also  as  laws  of  the  land. 

It  is  objected,  that  these  acts  are  retrospective,  because 
they  deprived  the  trustees  of  vested  rights,  and  are,  there- 
fore, void.  Rules  are  often  adopted  in  relation  to  govern- 
ment, which  appear  plausible  in  theory  and  arc  indeed  true 
to  a  certain  extent,  but  which  can  never  be  carried  into  ef- 
fect, according  to  the  terms,  in  which  they  are  expressed. 
No  political  axiom  is  more  frequently  repeated  than  this, 
lhat  the  legislative,  executive,  and  judicial  departments  of 
government  must  be  kept  separate  and  distinct.  Yet  the 
states,  that  have  adopted  th's  maxim  in  its  most  extensive 
terms,  have  blended,  in  some  degree,  the  authorities  of  these 
different  departments.  They  have  given  to  the  governour, 
a  qualified  negative  on  the  legislative,  which  is  an  exercise 
of  legislative  power;  they  have  made  the  senate  a  court  for 
the  trial  of  impeachments,  which  is  an  exercise  of  judicial 
authority.  They  have  even  vested  in  the  legislature  the 
executive  power  of  pardoning  ofFcnces(13).  In  the  same 
manner,  those  states,  that  have  adopted  the  maxim  that  ret- 
rospective laws  are  oppressive  and  unjust,  and  have  pro- 
hibited their  being  passed,  have,  in  many  instances,  depart- 
ed from  it,  and  passed  laws  of  this  description.  Our  bill  of 
rights  declares,  that  retrospective  laws  should  not  be  made 
for  the  trial  of  civil  actions  or  the  punishment  of  offences. 
This  scciiis  to  be  the  language  of  caution  rather  than  of 
prohibition.  It  shews,  lhat  there  was  in  the  minds  of  the 
framers  of  our  bill  of  rights  "a  conflict  between  jealousy 
and  conviction  ;" — a  dread  of  retrospective  laws  in  general 
without  any  restraint,  and  a  conviction  that  in  some  case* 
they  must  be  passed.  Laws  are  frequently  made,  that. 
strictly  speaking,  are  retrospective — they  deprive  the  citi- 
zens of  vested  rights  ;  yet  they  are  allowed  to  be  constitu- 
tional. The  limitation  act,  operating  on  demands,  that  ex- 
(15)  Sec  47th  Number  of  the  Federalist,  by  Mr.  Madison. 


SUPERIOR  COURT,  NEW-HAMPSHIRE  $\ 

isted  before  it  was  passed,  is  retrospective  ;  but  courts  in 
this  state  have  decided  it  to  be  constitutional.  The  decis- 
ion has  been  the  same  in  Massachusetts^  4). 

A  citizen  of  Massachusetts  conveyed  to  his  four  sons 
certain  lands  in  equal  portions  in  fee  simple.  Three  days 
after  the  conveyance,  the  General  Court  of  that  Common- 
wealth made  a  law,  by  which  it  was  enacted  that  all  estates, 
which  had  been  or  which  should  be  conveyed  to  two  or 
more  persons,  should  be  deemed  to  be  tenancies  in  common, 
unless  it  should  be  manifestly  the  intention  of  the  alienor, 
that  they  should  be  jointenancies.  The  Supreme  Court 
said,  it  was  unnecessary  to  decide  whether  the  words  of  the 
conveyance  created  a  jointenancy  or  a  tenancy  in  common, 
because  the  statute  had  a  retrospective  effect,  comprehend- 
ed the  conveyance,  and  made  it  a  tenancy  in  common(15). 
The  legislature  may  constitutionally  enact  laws,  by  which 
privilege-  once  granted  to  individuals  by  former  laws,  are 
revoked(16).  They  may  pass  laws,  affecting  the  rights  of 
parties  in  actions  already  pending(l7). 

All  laws  dividing  towns  ;  or  altering  their  limits  ;  or  alter- 
ing the  limits  of  parishes,  deprive  them  of  vested  rights. 
The  laws  passed  in  this  state,  forbidding  banks  !o  issue  bills 
payable  at  a  future  day — to  order — or  subject  to  any  con- 
ditions— or  payable  at  any  other  place  than  at  the  banks; 
whenee  they  were  issued,  deprive  them  of  vested  rights.  So 
also  do  those  laws,  passed  by  different  states,  that  prohibit 
their  issuing  bills  under  certain  denominations.  Such  laws 
are  retrospective,  but  they  are  allowed  to  be  constitutional. 

It  is  alleged,  that  no  vested  right  can  be  devested  out  of 
one  and  vested  in  another,  without  the  intervention  of  a 
court  of  justice.  This  position  is  not  correct. — By  a  law 
made  in  February  1791,(18)  the  selectmen  of   the  different 

(U)  8  Mass.  Rep.  430. 
(15)  4  Mass.  Rep.  566. 

(10)  1-2  Mass.  Rep.  443. 
(171  0  Mass.  Kep.  303. 
fl8)  1  State  liawb,  385. 


0'2  DARTMOUTH  COLLEGE  VS.  WOODWARD 

towns  in  this  state  arc  authorized,  on  application  made  to 
them,  to  lay  out  highways,  whether  they  are  for  the  bene- 
fit of  the  publicly,  or  particular  towns,  or  the  individuals  ap- 
plying for  them.  Hundreds  of  instances  have  happened, 
iu  which  selectmen  have  taken  the  lands  of  individuals  for 
highways  by  virtue  of  this  law.  Here  the  vested  rights  of 
those  individuals,  whose  lands  are  taken,  are  devested,  with- 
out the  intervention  of  a  court  of  justice,  and  vested  in  oth- 
ers. It  is  no  answer  to  say,  that  the  fee  remains  in  the  in- 
dividuals whose  lands  are  taken;  for  the  right  to  the  actual 
occupation  of  the  land  is  a  vested  right  as  much  as  any  that 
can  be  named. 

These  acts  are  alleged  to  be  unconstitutional,  because 
they  operate  on  one  corporation  on\j.  Suppose  there  was 
only  one  bank  in  the  state,  and  it  should  make  its  bills  paya- 
ble at  a  distant  day ;  and  the  General  Court  should  make  a 
law,  forbidding  any  bank  to  issue  bills  not  payable  on  de- 
mand. It  could  operate  only  on  a  single  corporation,  yet 
no  one  would  deny  the  power  of  the  General  Court  to  make 
it,  on  that  account.  The  legislature  of  Massachusetts  pass- 
ed an  act  in  March  1792,  prohibiting  the  Massachusetts 
bank  to  issue  bills  of  a  less  denomination  than  five  dollars. 
No  person  ever  supposed  the  law  to  violate  the  constitution, 
because  it  operated  only  on  a  single  bank.  An  act,  divid- 
ing a  town,  or  extending  or  contracting  its  limits,  operates 
on  a  single  corporation  only. 

But  what  are  the  rights  that  have  been  taken  from  the 
trustees  ?  They  have  been  deprived,  it  is  said,  of  their  right 
of  visitation.  That  right  never  belonged  to  them.  The 
Court  have  been  told,  that  this  College  was  a  private  charity; 
that  Doctor  Wheelock  was  its  founder  and  visitor  ;  and  that 
he  transferred  his  right  of  visitation  to  the  trustees.  It  is  be- 
lieved, that  not  one  of  these  positions  is  Well  founded. 

This  was  not  a  private,  but  a  publick  charity.  In  order 
to  determine  to  which  class  it   belonged,  we  are  not  to  con- 


SUPERIOR  COURT,  NEW-HAMPSHIRE.  93 

sider,  whether  it  was  founded  by  the  government  or  by  an 
individual.  The  government  may  be  the  founder  of  a  pri- 
vate charity;  and  an  individual  of  a  publick  one.  The  rule, 
by  which  this  is  to  be  determined,  was  considered  and  es- 
tablished by  Lord  Hardwicke  in  the  case  of  the  Attorney 
General  vs.  Pearce(19).  "  It  is,  says  his  lordship,  the  ex- 
tensiveness  of  the  objects  to  be  benefited,  that  constitutes  a 
charity  a  publick  or  a  private  one."  This,  then,  was  un- 
questionably a  publick  charity.  Lord  Holt  informs  us,  that 
some  corporations  are  created  for  publick  and  some  for  pri- 
vate charities  ;  that  the  former  are  not  subject  to  any  foun- 
der; but  to  the  general  laws  and  statutes  of  the  realm(20). 
This  corporation,  being  established  for  a  publick  charity, 
was  not  subject  to  any  founder,  but  to  the  general  laws  and 
statutes  of  the  state. 

Suppose  this  was  a  private  charity,  who  was  its  founder? 
ft  has  been  asserted  that  Dr.  Wheelock  was  the  founder, 
but  the  assertion  is  supported  by  no  evidence.  It  is  incum- 
bent on  the  trustees  to  prove  that  he  founded  it,  if  they 
claim  the  right  of  visitation  under  him.  It  is  not  intended 
to  detract  from  the  merit  of  Dr.  Wheelock  by  denying  that 
he  founded  this  charity.  He  is  entitled  io  the  highest 
praise,  for  his  extraordinary  exertions  in  procuring  donations 
from  various  persons,  in  Europe  and  in  this  country,  for  the 
establishment  of  the  College.  The  charter,  probably  in  con- 
sequence of  these  exertions,  calls  him  the  founder.  But 
this  does  not  make  him  so.  "The  first  gift  of  the  reven- 
ues is  the  foundation,  and  he  who  gives  them  is  in  law  the 
founder"  (21).  Many  individuals  made  donations,  but  who 
made  the  first  ?  It  does  not  appear.  I  am  instructed  to 
say,  that  Dr.  Wheelock  made  very  liberal  donations  to 
Moor's  Charity  School,  an  institution  in  the  neighbourhood 
of  the  College,  though  entirely  distinct  from  it,  but  that  he 

(19)2   Atkyns&a. 

(20)3  Salk.   102. 

'21)  I  Black.  Uom.  480 


fl  >  DARTMOUTH  COLLEGE  VS.  WOODWARD. 

m:ulc  none  to  flic  College  itself.  The  charter  states,  that 
Dr.  VVheelock,  on  or  about  the  year  1754,  at  his  own  ex- 
pense, and  on  his  own  estate  and  plantation  in  Lebanon  in 
Connecticut,  set  on  foot  an  Indian  charity  school;  and  that, 
with  theassistar.ee  of  several  well  disposed  persons,  he  had, 
for  several  years,  clothed,  maintained,  and  educated  a  num- 
ber of  the  children  of  the  Indian  natives.  In  no  part  of  the 
charter  is  it  mentioned,  that  he  made  any  donation  to  the 
College.  If  he  did,  there  is  no  evidence  of  the  fact.  It 
docs  not  appear  then,  that  he  was  the  founder  or  that  he 
had  power  to  transfer  the  right  of  visitation  to  the  trustees. 
If  Dr.  Wheelock  was  the  founder  and  visitor  of  the  Col- 
lege, he  did  not  transfer  to  the  trustees  the  right  of  visita- 
tion. There  are  no  words  in  the  charter  making  them  visi- 
tors. It  is  agreed,  that  no  particular  form  of  words  was 
necessary  to  make  them  visitors,  but  there  must  be  some 
words  clearly  showing  that  this  was  his  intention.  Where 
certain  persons  are  appointed  trustees  or  governours,  they  are 
not  necessarily  visitors(22).  The  law  seems  to  be  well  set- 
tled, that  where  the  management  and  application  of  the  funds 
given  to  a  charity,  are  vested  in  trustees  or  governours,  they 
are  not  visitors (23).  The  reason  is  apparent.  It  would  de- 
feat the  charity,  if  the  same  men,  who  have  the  right  of  ap- 
plying its  funds,  should  possess  also  the  exclusive  right  of 
deciding,  whether  those  funds  were  properly  applied.  In 
this  case,  it  is  said,  that  the  trustees  had  the  legal  estate  in 
all  the  lands  and  property  given  for  the  use  of  the  institu- 
tion. They  certainly  had  the  application  and  management 
of  its  funds.  They  could  not,  therefore,  have  been  visit- 
ors, ff  we  had  had  a  court  of  chancery  in  this  state,  the 
trustees  would  have  been  subject  to  its  inspection  and  con- 
troul,  but  as  we  had  no  such  court,  they  were  subject  to 
the  inspection  and  controul  of  the  legislature.  That  the 
legislature  may  exercise  some  of  the  powers  of  a  court  of 

fC'2)  2  P.  Williams  327.-2  Kyd  188.  189.  194. 
[23)  2  Kyd  1S8 


SUPERIOR  COURT,  NEW-HAMPSHIRE.  &> 

chancery,  in  the  absence  of  such  a  court,  so  far  r.s  relates 
to  trusts,  is  admitted  bj  the  Supreme  Court  in  Massachu- 
setts^). 

It  is  alleged,  that  these  acts  have  deprived  the  corpora- 
tion of  Dartmouth  College  of  the  franchise  of  subsisting  as 
a  corporate  body;  that  they  have  destroyed  it  and  created 
a  new  corporation  in  its  place.  Nothing  can  be  more  un- 
founded. It  is  true,  the  name  of  the  corporation  has  been 
changed,  but  that  does  not  destroy  it,  nor  affect  its  rights, 
its  privileges,  or  its  duties.  The  name  of  a  corporation, 
like  that  of  an  individual,  is  a  mere  accident  ;  it  is  not  of  its 
essence.  "  Where  an  alteration,  is  made  in  the  name  of  a 
corporation,  it  retains  the  property,  franchises,  rights,  and 
privileges,  which  belonged  to  it  before  the  alteration,  and  is 
equally  liable  to  all  claims  to  which  it  was  subject" (25). 
An  addition  has  been  made  to  the  number  of  trustees,  but 
it  is  the  same  corporation  still.  If  individuals  are  disannex- 
ed  from  one  parish  and  annexed  to  another,  by  an  act  of  the 
legislature,  is  the  parish,  to  which  they  are  annexed,  des- 
troyed as  a  corporation  ?  If  an  addition  be  made  to  the  mem- 
bers of  a  town  corporation,  by  any  means  whatever,  does  it 
cease  to  be  a  corporation?  The  General  Court  recognize  the 
existence  of  this  corporation  in  the  most  express  terms. 
They  say,  "  That  the  corporation,  heretofore  called  and 
known  by  the  name  of  the  Trustees  of  Dartmouth  College, 
shall  be  called  and  known  by  the  name  of  the  Trustees  of 
Dartmouth  University." 

It  is  urged,  that  to  make  any  addition  to  the  number  of 
trustees  was  improper,  because  it  was  the  intention  of  the 
donors,  that  the  property  given  by  them  should  be  managed 
by  twelve  trustees  and  no  more.  This  is  not  true,  because 
the  principal  donations  were  made  before  it  was  known  of 
what  number  the  corporation  would  consist.  When  a  man 
gives  property  for  a   particular  object,  he   intends    that   it 

(24)  V2  Mass.  Rep.   53r 
(-25 j  2Ky<1232. 


9f>  DARTMOUTH  COLLEGE  VS.  WOODWARD. 

shall  be  applied  (o  that  object,  but  it  is  a  matter  of  no  im- 
portance iohim,  whether  the  application  be  made  by  twelve 
trustees  or  by  twenty. 

The  trustees  allege,  that  the  General  Court  attempted  to 
compel  them  to  act  under  an  amended  charier;  and  that 
they  had  no  power  to  do  if.  Many  cases  have  been  cited 
on  this  point,  but  they  only  show,  that  the  King  cannot  com- 
pel corporations  to  accept  or  act  under  amended  charters, 
not  that  Parliament  cannot  compel  them.  The  authority  ot" 
Parliament,  as  every  one  knows,  is  much  more  extensive 
than  that  of  the  King.  The  King  cannot  grant  to  a  corpora- 
tion exclusive  privileges,  Parliament  may  ->  the  King  cannot 
dissolve  a  corporation,  Parliament  possesses  the  power. — 
Corporations  in  this  state  have  frequently  been  compelled 
to  act  under  amended  charters.  The  cases  of  Pembroke, 
Stratham,  and  Newmarket,  that  have  been  mentioned,  are 
examples.  Indeed  this  is  always  the  case,  where  the  limits 
of  towns  or  parishes  are  altered.  Banks,  likewise,  in  the 
several  instances  that  have  been  named,  have  been  compel- 
led to  act  under  amended  charters.  But  it  is  not  true,  that 
the  General  Court  attempted  to  compel  the  trustees  to  act 
under  an  amended  charter  ;  they  gave  them  permission  to 
do  it,  but  did  not  attempt  to  compel  them. 

It  is  objected,  that  these  acf3  are  repugnant  to  the  thir- 
ly-seventh  article  in  the  bill  of  rights  ;  which  declares,  that 
the  legislative,  executive,  and  judicial  departments  of  gov- 
ernment shall  be  kept  separate  and  distinct.  In  passing 
these  acts,  it  is  said,  that  the  General  Court  exercised  ju- 
dicial powers.  It  is  not  very  easy  to  perceive,  how  the  al- 
teration of  the  charter  of  a  College  is  an  exercise  of  judicial 
authority,  any  more  than  the  alteration  of  the  charter  of  a 
town,  or  a  parish,  or  a  bank.  For  a  court  of  law  to  under- 
take to  alter  the  charter  of  a  corporation,  either  publick  or 
private,  would  afford  something  of  novelty  at  least,  injudi- 
cial proceedings.     By  these  acts  the  General  Court,  it  is  in- 


SUPERIOR  COURT,  NEW-HAMPSHIRE.  9? 

misled,  have  declared  a  forfeiture.  Who  ever  imagined, 
that  when  the  General  Court  altered  the  charter  of  a  town, 
they  declared  a  forfeiture  ?  Who  ever  suspected,  that  when 
they  altered  the  charter  of  a  bank,  they  declared  the  char- 
ter forfeited  ? 

The  case  of  Terrett  &  al.  vs.  Taylor  &  al.(26)  is  said 
lo  be  decisive  of  the  present.  There  is  no  resemblance 
between  them.  The  legislature  of  Virginia  asserted  a  right 
to  all  the  property  of  the  episcopal  churches  in  the  respec- 
tive counties  in  the  state  ;  and  authorized  the  overseers  of 
the  poor,  in  each  parish,  wherein  any  glebe  land  was  vacant 
or  should  become  so,  to  sell  the  same  and  appropriate  the 
proceeds  to  the  use  of  the  poor  of  the  parish.  The  su- 
preme court  decided,  that  the  act  taking  this  property  from 
the  churches  and  giving  it  to  the  poor  of  the  several  parish- 
es, was  unconstitutional  and  void.  If  the  legislature  of 
New-Hampshire  had  taken  the  property  holden  by  the  trus- 
tees for  the  purposes  mentioned  in  the  charter,  and  had 
given  it  to  the  poor  of  the  town  of  Hanover,  there  would 
have  been  some  resemblance  between  the  cases  :  but  even 
riien  the  resemblance  would  not  have  been  striking.  In  the 
case  cited,  the  property  was  taken  from  those  who  had  the 
beneficial  interest ;  in  this,  it  is  not.  In  that  case,  the  prop- 
erty was  given  for  one  purpose  and  applied  to  another ;  in 
this,  the  property  is  employed  for  the  same  purposes,  for 
which  it  was  designed.  It  is  indeed  alleged,  that  the  funds 
may  be  diverted  from  their  proper  objects  ;  that  they  may 
be  employed  for  the  establishment  of  an  institute.  The  in- 
stitute, if  there  should  be  one,  will  undoubtedly  be  so  form- 
ed as  to  promote  the  objects  mentioned  in  the  charter.  The 
responsibility  of  the  legislature  wiil  prevent  the  funds  of  the 
institution  from  being  misemployed. 

In  order  to  form  a  correct  opinion  of  the  justice  of  the 
complaint,  made  by  the  trustees,  in  relation  to  the  taking  of 

f-26)   9  Crunch  43. 

u 


98  DARTMOUTH  COLLEGE  VS.  WOODWARD 

property  given  to  the  use  of  the  institution,  we  should  be 
careful  not  to  confound  the  corporation  with  the  members 
composing  it.  The  law  regards  them  as  separate  and  dis- 
tinct. The  legal  title  to  property,  granted  to  a  corporation 
does  not  vest  in  the  corporators,  but  in  the  corporation  it- 
self, which  is  made  capable  of  holding  it  as  an  individual. 
In  whom  was  the  legal  title  to  this  property  before  the  pass- 
ing of  these  acts  ?  In  the  corporation  of  Dartmouth  College. 
In  whom  is  the  legal  title  now  ?  In  the  same  corporation 
existing  under  a  different  name.  The  legal  title  was  in  the 
corporal  ion,  while  the  beneficial  interest  was  in  the  publick. 
The  trustees  have  not  been  deprived  of  the  privilege  of  be- 
ing members  of  the  corporation.  By  these  acts  they  were 
considered  as  members  of  Dartmouth  University,  the  same 
corporation  with  Dartmouth  College,  but  with  another  name; 
they  were  a  majority  of  the  members  ;  as  members  they 
could  hold  property,  and  could  exercise  all  their  rights, 
privileges,  and  franchises  for  precisely  the  same  purposes, 
as  they  could  before  these  acts  were  passed.  If  they  refus- 
ed to  act  as  members,  they  have  no  just  reason  to  com- 
plain. 

It  has  been  repeatedly  said,  that  if  the  trustees  had  con- 
ducted improperly,  an  information  should  have  been  filed, 
and  their  charter  declared  forfeited  by  the  judgment  of  a 
court  of  law.  Whether  the  General  Court  were  induced  to 
alter  this  charter,  on  account  of  any  abuses  of  which  the 
trustees  had  been  guilty,  is  not  now  to  be  considered.  It 
was  sufficient  that,  in  their  judgment,  it  might  be  so  amend 
ed,  as  to  be  better  adapted  to  the  end,  for  which  it  was 
Formed.  Abuses,  however,  might  have  taken  place,  by 
which  no  forfeiture  would  have  been  incurred.  To  file  an 
information  in  the  case  of  a  private  corporation  may  be 
proper;  bur,  to  do  it,  in  the  case  of  a  publick  corporation, 
like  that  of  Dartmouth  College,  would  be  in  the  highest  de- 
cree imprudent.     Suppose  the   trustees  had  bean  guilty  o*" 


SUPERIOR  COURT,  NEW-HAMPSHIRE.  99 

great  abuses  of  (heir  trust,  an  information  had  been  filed,, 
and  their  charter  had  been  declared  forfeited,  what  would 
have  been  the  consequence  T  Would  the  trustees  have  lost 
anj  thing  ?  Not  a  cent.  The  publick,  and  not  the  trus- 
tees, would  have  been  the  sufferers.  The  publick  would 
have  lost  all  the  benefit  of  the  property,  that  had  been  giv- 
en to  promote  the  objects  of  the  corporation.  When  the 
charter  of  a  corporation  is  declared  forfeited  by  the  judg- 
ment of  a  court  of  law,  the  property  given  to  it  reverts  to 
the  donor  or  his  heirs(27). 

It  has  been  stated,  that  if  the  General  Court  can  alter 
this  charter,  the  corporation  holds  it  at  then'  mere  will  and 
pleasure.  This  is  one  side  of  the  picture,  let  us  view  the 
other.  If  the  General  Court  cannot  alter  it,  then  the  cor- 
poration may  hold  it  in  defiance  of  all  human  power.  If 
this  corporation  was  erected  for  the  purpose  of  advancing 
the  publick  interest,  there  is  a  peculiar  propriety  in  having 
its  charter  subject  to  the  will  of  those,  who  are  the  guardians 
of  that  interest.  This  is  far  more  proper  than  that  a  corpo- 
ration, created  entirely  for  the  publick  good,  should  hold 
its  charter,  as  fixed  and  unalterable  as  the  decrees  of  fate} 
although  the  publick  good  may  loudly  demand  its  amend- 
ment. 

The  legislature,  it  is  urged,  may  abuse  their  power,  and 
may,  by  an  improper  interference,  discourage  donations. 
But  is  there  no  danger  that  the  corporation  will  discourage 
donations,  by  an  abuse  of  its  trust,  if  it  may  claim  to  be  in- 
dependent of  the  legislature?  If  it  really  possesses  those 
rights  and  privileges,  which  are  said  by  counsel  to  belong 
to  ir,  donors  can  have  no  reasonable  security  that  their  boun- 
ty will  not  be  misapplied. 

In  the  first  place,  wc  are  told,  that  the  corporation  i* 
placed  beyond  the  controul  of  the  legislature.  They  have 
no  authority  to  amend  its  charier  ;  to    touch    its    properly: 

(27)  2  Kyi  Sir, 


100  DARTMOUTH  COLLEGE  VS.  WOODWARD 

to  take  from  it  a  single  right  or  privilege  ;  or  to  limit  the 
exercise  of  any  one  of  its  powers.  In  the  next  place,  we 
are  told,  that  the  trustees  are  visitors  of  the  College  and  of 
the  application  of  its  funds.  This  places  them  beyond  the 
coutroul  of  every  court  of  law,  let  them  do  what  they  will 
with  the  property  given  to  the  institution.  "  The  sentence 
of  a  visitor,  on  subjects  within  his  jurisdiction,  is  final  and 
conclusive,  and  the  king's  courts  cannot,  in  any  form  of  pro- 
ceeding, review  the  sentence" (28).  It  is  within  the  juris- 
diction of  a  visitor, — it  is  his  duty  to  see,  that  the  funds 
given  to  the  institution  of  which  he  is  visitor,  are  proper- 
ly applied :  and  when  he  decides,  his  sentence  is  conclu- 
sive on  all  courts.  Suppose  the  trustees  should  appropriate 
the  funds  of  the  College  to  their  own  use.  If  they  are  vis- 
itors as  to  the  application  of  the  funds,  as  is  contended,  no 
court  of  law  can  make  them  accountable.  A  visitor  is  him- 
self subject  to  no  visitation — to  no  controul.  Where  is  the 
man,  though  possessed  of  the  most  charitable  and  benevo- 
lent feelings,  that  would  give  to  a  corporation,  raised  so  far 
above  all  responsibility  ?  Such  a  corporation  is  a  monster, 
that  would  devour  all  charities.  The  very  sight  of  such  a 
monster,  placed  beyond  all  legislative,  all  judicial  controul, 
like  the  terrifick  head  of  Medusa,  would  convert  even  chari- 
ty herself  into  stone. 

The  counsel  on  the  other  side  have  expressed  an  opinion, 
that  the  legislature  are  a  very  improper  body  to  superintend 
literary  institutions.  The  people,  when  they  formed  their 
constitution,  thought  otherwise.  By  that  instrument  they 
declare  "That  it  shall  be  the  duty  of  legislators,  in  all  fu- 
ture periods  of  this  government,  to  cherish  the  interest  of 
literature  and  the  sciences,  and  all  seminaries  and  publick 
schools."  The  people  did  not  expect,  that  this  would  be 
done  by  donations  merely,  but  by  wise  and  salutary  laws. 
It  is  feared,  that  the    legislature,  under  pretence   of  aiding 

('28)  '2  Kjci  on  Corporations  106. 


SUPERIOR  COURT,  NEW-HAMPSHIRE.  101 

these  institutions,  will  deprive  them  of  their  property,  or 
their  most  valuable  rights  and  privileges.  But  no  such  dan- 
ger is  to  be  apprehended.  If  the  property  of  a  literary  in- 
stitution should  be  seized  by  the  legislature,  and  appropriat- 
ed to  a  use,  different  from  that,  for  which  it  was  designed  ; 
or  if  any  oppressive  laws  should  be  passed,  injuring  and  re- 
tarding its  growth, there  would  be  an  universal  burstof  indig- 
nation throughout  the  state.  Any  legislature  that  should 
act  in  this  manner  would  be  considered  as  unworthy  of  con- 
fidence, and  would  lose  their  offices.  The  members  of  the 
legislature  know  this.  Our  frequent  elections  make  them 
feel  their  dependence  on  the  people,  and  keep  them  faithful 
10  their  duty.  Most  of  them  have  children  or  friends  to 
be  educated  at  the  seminary  ;  they  must,  therefore,  feel  the 
strongest  wishes  for  its  prosperity.  The  interest  of  the  leg- 
islature, as  well  as  that  of  the  publick,  will  become  sentinels 
over  the  rights  and  privileges  of  the  corporation,  and  will 
protect  them. 

1  am  aware,  that  in  examining  and  deciding  this  question, 
prejudices,  strong  and  inveterate,  are  to  be  encountered. 
We  are  too  apt  to  imagine,  that  there  is  something  of  sanc- 
tity, investing  the  rights  and  privileges  of  corporations. 
But  it  is  justly  remarked,  that  "  a  corporation  is  nothing 
more  than  a  mean  to  an  end."  In  this  case  the  promotion  of 
Christianity  and  the  dissemination  of  knowledge  were  the 
ends  ;  the  incorporation  of  a  number  of  individuals  was  the 
mean  of  obtaining  them.  When  the  sovereign  power  of  a 
state  has  a  right  to  effect  certain  objects,  it  is  necessarily 
incident  to  such  power  to  employ  all  the  means,  by  which 
those  objects  may  be  effected  ;  it  is  also  incident  to  such 
power  to  alter  and  to  shape  the  means,  already  employed, 
in  the  best  and  most  advantageous  manner.  Without  the 
power  of  alteration,  the  very  means  employed  might  defeat 
(he  end.  If,  then,  this  corporation  was  only  the  mean  o^ 
obtaining  the  ends,  that  have   been  mentioned,    the    legisla- 


10*2      DARTMOUTH  COLLEGE  VS.  WOODWARD. 

lure;  had  a  riiifit  to  alter  and  to  form  it  in   such  manner,  as  in 
their  judgment,  would  best  effect  the  ends  proposed. 

That  a  corporation,  created  for  the  sole  purpose  of  pro- 
moting the  publick  interest,  may  be  altered  in  such  a  man- 
ner as  the  publick  interest  requires,  is  a  principle  as  obvi- 
ous to  common  sense  as  any  that  can  be  imagined. 

When  the  important  purposes,  for  which  this  corporation 
was  erected,  are  taken  into  view,  as  well  as  the  duty  of  the 
legislature  in  relation  to  them,  no  doubt  can  be  entertained 
of  their  right  to  alter  and  amend  the  charter. 

Civil  government,  like  every  other  work  of  man,  must  be 
imperfect :  the  aids  of  religion  are  necessary  to  remedy  its 
defects.  Whatever  may  be  the  form  of  government  adopt- 
ed by  a  people,  without  morality  they  cannot  be  happy, 
But  so  feeble  is  the  influence  of  laws  and  of  political  insti- 
tutions on  the  morals  of  mankind,  that  no  nation  can  be  ex- 
pected, without  religion,  to  practice  the  duties  which  moral- 
ity enjoins.  It  is  justly  remarked,  that  the  duties  of  chari- 
ty, benevolence,  gratitude,  and,  indeed,  all  our  duties  of  im- 
perfect obligation,  without  the  aids  of  religion,  would  remain 
undischarged.  Human  laws  cannot  enforce  their  perform- 
ance. It  is  religion  alone  that,  by  meliorating  the  temper 
and  dispositions  of  the  heart,  can  lead  to  the  discharge  of 
these  duties,  so  important  to  the  happiness  of  society.  It 
is  this  alone,  that  can  prevent  the  commission  of  those  se- 
cret offences,  which  human  tribunals  cannot  know,  and 
which,  of  courne,  they  cannot  punish.  But  these  effects 
arc  not  to  be  expected  from  those  absurd  systems  of  relig- 
ion, that  so  long  prevailed  in  the  world;  which  allowed 
their  votaries  to  indulge  in  licentiousness,  and  to  trample 
every  principle  of  morality  underfoot;  which  afforded  a 
justification  of  every  vice  "  by  the  example  of  some  god." 
Nor  are  they  to  be  expected  from  those  false  and  absurd 
systems  that  stiil  prevail  ;  which  substitute  trifling,  super- 
cilious observances  in  the  place  of  genuine  piety  and  moral 


SUPERIOR  COURT,  NEW-HAMTSHIKE.  103 

goodness  ;  which  promise,  as  the  highest  rewards  of  virtue 
beyond  the  grave,  the  unrestrained  indulgence  of  the  sen- 
sual appetites  ;  which  afford  a  seat  in  paradise  without  pu- 
rity of  heart.  It  is  from  Christianity  alone,  that  these  salu- 
tary effects  can  be  expected.  It  is  this  system,  that  teach- 
es the  most  perfect  lessons  of  morality  and  points  out  our 
duties  in  every  relation,  and  under  ail  circumstances  and 
conditions  in  lift?.  While  the  religion  of  men  wants  a  suffi- 
cient motive  to  action  ;  Christianity  presents  motives  the 
moat  powerful,  that  human  imagination  can  conceive.  It  al- 
lures to  the  practice  of  virtue  by  promises  of  perfect  and 
endless  felicity ;  it  deters  from  the  practice  of  vice  by 
threats  of  the  most  awful  punishment.  This  religion, 
"  which  has  the  promises  of  this  life  and  of  that  which  is 
to  come,"  the  constitution  has  enjoined  it  as  a  duty  on  the 
legislature  to  encourage  and  to  promote. — The  same  instru- 
ment has  made  it  the.  duty  of  the  legislature  to  diffuse  know- 
ledge among  the  people.  It  declares  that  "  knowledge  is 
essential  to  the  existence  of  every  free  government."  Hence 
it  has  happened,  that  between  despotism  and  knowledge, 
?here  has  been  a  perpetual  warfare.  In  despotick  govern- 
ments, it  is  necessary  that  the  people  should  be  kept  igno- 
rant of  their  rights,  lest  they  should  break  the  chains  with 
which  their  oppressors  have  bound  them.  Knowledge  and 
virtue  are  the  main  pillars,  on  which  the  fabrick  of  our  free- 
dom rests.  Destroy  these,  and  the  tottering  edifice  must 
fall  to  the  ground,  and  we  must  be  crushed  beneath  its  ru- 
ms. Then  would  the  last  hope  of  liberty  expire.  Then 
would  the  gloomy  predictions  of  the  advocates  of  despotism 
be  realized,  that  no  nation  will  ever  be  found  capable  of 
maintaining  a  free  government.  These  objects,  so  impor- 
tant to  the  happiness  of  our  country,  and  the  promotion  of 
which  is  among  the  most  sacred  duties  of  the  legislature,  it 
was  the  professed  design  of  this  charter  to  attain.  Ti'.i- 
"orporatioti,  bvin'j'  ;•  mere  instrument  to  effeet  these  oh 


104  DAKTM  OU'ill  COLLEGE  VS.  WOODWARD 

it  was  both  the  right  and  the  duty  of  the  legislature  to  alter 
and  amend  its  charter  in  such  a  manner,  as  would,  in  their 
judgment,  be  best  calculated  to  obtain  them.  If  the  legis- 
lature had  refused  to  amend  the  charter,  thinking  it  too  sa- 
cred to  be  touched,  they  would  have  imprudently  given  up 
the  substance  for  the  shadow ;  they  would  have  weakly 
sacrificed  the  end  to  the  means. 


Mr.  Smith. — The  question  to  be  discussed  is  whether,  on 
the  facts  stated,  the  acts  of  the  legislature  of  this  state  of  the 
27th  of  June,  18th  and  26th  of  December  1816,  are  valid 
in  law  and  binding  on  the  trustees  of  Dartmouth  College  with- 
out their  assent.      I  freely  admit,  that  this  is  a  question  of 
mere  constitutional  right,  and  that  it  is  not  sufficient  that  the 
plaintiffs  satisfy  the  court  that  those  acts  are  impolitick,  inex- 
pedient and  such  as  have  no  tendency   "  to   amend   or   im- 
prove the  corporation  of  Dartmouth  College."     To  me,  in- 
deed, it  appears,  that  the  constitution  of  this    literary  semi- 
nary is  made  worse,  not  better,  by  these  legislative  provis- 
ions ;  that  the  charter  of  1769  was  a  good  one,  requiring  no 
alteration,  and  is  every  way  adapted  to  such   an  institution 
at  the  present  day.    J  hazard  little  in  predicting  that  should 
this  new  organization  continue  for  any  length  of  time,  expe- 
rience, the  surest  test  of  measures,  would  satisfy  its  friends, 
that  most  of  the  new  provisions  were    inconvenient,   some  of 
them  impracticable,  and  others  useless,  or  worse  than   use- 
less.    I  admit  they  were  well  enough  calculated  to  answer 
one  purpose,  if  that  was  the  end  proposed,  that  of  enabling 
the  minority  of  the  college  government  to  outvote   the  ma- 
jority.    But  though  in  my  judgment  the  charter  of  the  col- 
lege required  no  alteration,  and,  as  altered,  that  it  has  not 
been  amended  or  improved,  yet  I  am  not  disposed  to  deny 
that  the  college  stood   in   need  of  encouragement,  and  had 
very  powerful  claims  to  the  fostering  care  of  the  legislature 


SUPERIOR  COURT,  XEW-HAMPSHIRE.  105 

surd  of  all  good  men  ;  not  to  enlarge  its  charter  but  its 
funds,  that  it  might  more  effectually  answer  the  end  of 
its  creation,  and  by  diffusing  knowledge  and  learning 
more  generally  through  the  community,  conduce  essentially 
to  the  preservation  of  our  free  government.  But  the  pre- 
sent action  was  not  brought  lo  obtain  the  opinion  of  the 
court  on  any  of  these  questions,  but  on  the  right  of  the 
plaintiffs  to  continue  to  be  a  corporate  body,  and  to  hold  and 
enjoy  in  future,  as  they  have  held  and  enjoyed  in  times  past, 
their  corporate  property  and  their  corporate  franchises  and 
powers  for  the  use  of  Dartmouth  College,  unimpaired  and 
unaffected  by  the  acts  of  the  legislature  of  the  last  year, 
to  which,  on  the  fullest  consideration,  they  have  deemed  it 
their  indispensable  duty  to  refuse  their  assent. 

The  ground  taken  by  the  defendants  counsel  on  the  form- 
er argument,  and  now,  renders  it  necessary,  in  the  first  place 
to  enquire,  whether  the  acts  in  question,  essentially  alter  the 
charier  of  1T69  ;  or  whether  the  alterations  are  to  be  re- 
garded as  immaterial. 

Were  it  not  for  the  suggestions  which  have  fallen  from 
the  bench,  at  different  times  in  the  course  of  the  argument, 
I  should  have  thought,  that  on  this  part  of  our  case,  two 
opinions  could  hardly  have  been  entertained. 

The  change  of  name  is  not  in  itself  a  matter  of  much  con- 
sequence. Rut  it  is  believed  that  this  business  of  baptizing 
anew,  individuals  or  corporate  bodies,  against  their  wills, 
by  legislative  acts,  has  not  been  usual.*  If  there  is  any  thing, 
which  seems  peculiarly  to  be  a  person's  own,  it  is  his  name. 
He  may  prefer  the  old  to  the  new  as  more  suitable  to  his  con- 
dition. Here  too,  Ihe  change  of  name  seems  to  indicate  a 
change  in  the  nature  of  the  body  ; — for  upon  the  principles 
of  the  common  law,  an  university,  on  the  model  of  those  at: 
Oxford  and  Cambridge  is  a  civil,  while  a  college  is  an  elee- 
mosynary corporation.  It  is  ea*y  however  to  conceive  of 
circumstances  which  micht  justify  this  act.  imposing  a  new 

•in  f'o.  »S. 

If. 


106  DARTMOUTH  COLLEGE  VS.  WOODWARD. 

name— such  an  increase  in  the  funds  by  the  liberality  of  the 
state,  or  the  Jovers  of  literature  who  guide  its  councils,  as 
would  require  the  formation  of  several  colleges  at  the  same 
place.  Gratitude  for  the  favour,  to  say  nothing  of  the  pro- 
priety of  the  thing,  from  the  enlarged  endowment,  would 
soon  reconcile  modest  men  to  a  high  sounding  title. 

But  passing  from  the  names  of  the  two  corporations  let 
us  look  into  their  conslitutions  as  settled  by  the  charter  and 
by  the  legislative  acts. 

A.s  it  respects  the  members,  the  charter  declares  their 
number  shall  be  twelve  and  no  more  ;  the  acts  provide  that 
the  number  shall  be  twenty  one.  This  is  important.  The 
trustees  are  not  officers  of  the  corporation  but  constituent 
members  ;  the  integral  parts  of  the  corporate  body.  En- 
creasing  or  diminishing  these  essentially  alters  the  constitu- 
tion of  the  corporation(l). 

The  trustees  named  in  the  charter  were  appointed  chiefly 
if  not  entirely,  (according  to  the  established  usage  in  such 
cases)  (2)  at  the  nomination  of  the  persons  providing  the 
funds,  or  a  person  acting  for  them.  The  additional  trus- 
tees, provided  by  the  acts,  are  appointed,  not  by  the  cor- 
poration, as  all  new  members  by  the  charter  were  to  be  ap- 
pointed, but  by  the  governour  and  council,  as  civil  officers 
of  the  state  are  appointed  : — and  vacancies,  before  a  certain 
time,  are  to  be  filled  up  in  the  same  way.  This  in  the 
event,  gave  to  the  state  the  appointment  often  trustees  be- 
fore the  organization  of  the  corporation  created  by  the  acts  ; 
and  "  nine  trustees  convened  agreeably  to  the  new  provis- 
ions are  made  a  quorum  for  transacting  business."  This  last 
provision  was  made  before  the  new  corporation  was  organiz- 
ed ;  so  that  the  new  was  no  way  dependent  on  the  old  for 
its  existence. 

By  the  charter  all  the  powers  of  the  corporation  are  vest 
cd  in  the  twelve  trustees.     By  the   acts  not  only  nine  nev; 

(1)  2  Rro.  C.  C.  Gf)2.— 12  Mod.  232.  anon. 
f'2)  13  Vez.  Jr.  530.  Atty.  Gen  vs.  Dixie. 


SUPERIOR  COURT,  NEW-HAMPSHIRE.  10i 

members  are  added,  but  a  board  of  overseers  is  constituted, 
consisting  of  twenty-five  members  appointed  by  the  govern- 
ourand  council,  with  a  negative,  on  all  the  important  acts  oi. 
the  trustees  : — and  vacancies,  in  this  latter  body,  are  to  be 
filled  up,  in  all  future  time,  by  the  governour  and  council  ; 
that  is,  this  branch  of  the  college  government  is  perpetuated, 
not  in  the  mode  prescribed  by  the  charter,  by  the  govern- 
ment of  the  college,  but  by  the  government  of  the  state. 

The  power  to  maintain  perpetual  succession,  that  is  of 
electing  members  in  the  room  of  such  as  go  off,  is  said  to  be 
necessarily  and  inseparably  incident  to  a  corporation  :(3) 
where  a  corporation  has  not  this  power,  it  is  dependent  on 
some  other  person  or  body  politick  for  its  continuance. 

As  it  respects  the  funds  or  corporate  property,  this  was 
held  by  the  twelve  trustees  chosen  under  the  charter,  cloth 
ed  with  the  trusts  declared  in  that  instrument  in  strict  con- 
formity with  the  will  of  the  donors.  The  acts  transfer  it  to 
the  trustees  "  as  constituted  by  the  acts  ;" — so  in  like  man- 
ner it  is  provided,  that  the  new  trustees  "  shall  forever  have, 
hold,  use,  exercise  and  enjoy,  all  the  powers,  authorities, 
rights,  liberties,  privileges,  and  immunities"  which  the  char 
fer  vested  in  the  trustees  of  Dartmouth  College. 

New  powers  are  also  conferred  ;  and,  what  is  much  more 
material,  new  and  different  uses  and  trusts  are  created  and 
declared  :  they  (the  new  trustees)  "  have  power  to  organize 
colleges  in  the  university  ;  to  establish  an  institute  and 
elect  fellows  and  members  thereof:  to  arrange,  invest  and 
employ  the  funds  of  the  university,1'  which  the  same  acts 
had  just  taken  from  the  college.  It  will  hardly  be  pretend- 
ed that  the  trustees  had  authority  to  do  any  of  these  tilings  ; 
if  not,  it  seems  to  follow,  that  thry  alter  and  vary  the  origi- 
nal end  and  purpose  of  the  institutional). 

In  exercising  these  powers,  privileges  and  immunities  and 
applying  the  funds,  the  new  trustees  are  in  most  cases,  sub* 

(.,)   1  Mac.  475.-2  Mac.  37. 

fi)  2  V'  4,  Jr    i2—  <2  Urn  C.C.  C>Cr2 


108  DARTMOUTH  COLLKtifc  VS.  WOODVvAKJ). 

ject  to  the  controul  of  a  board  of  overseers,  entirely  tlje  crea- 
ture of  the  state.  The  acts  in  question  farther  give  the 
governour  and  council  the  power,  and  make  it  their  duty, 
"  to  inspect  the  doings  and  proceedings  of  the  corporation 
And  of  all  the  officers  of  the  university  whenever  they  deem 
it  expedient  ;  and  to  report  their  doings  to  the  legislature  ;" 
that  they,  I  suppose,  according  to  the  memorial  present- 
ed by  the  late  president  of  the  college — containing  a  "sur- 
render of  all  his  official,  civil  and  political  rights,"(5) 
may  exercise  "  the  sacred  right  to  visit  and  oversee  this 
literary  establishment." 

It  is  not  apprehended  that  the  acts  are  more  catho- 
lic on  the  score  of  "  perfect  freedom  of  religious  opin- 
ion" than  the  charter.  The  former  indeed  go  a  step  far- 
ther, in  making  it  compulsory  on  the  trustees  to  accept 
donations,  "  for  the  endowment  of  professorships  of  any 
sect,  of  the  protestant  christian  religion."  How  far  this 
provision,  which  has  the  merit  of  being  entirely  new,  may 
contribute  to  advance  the  science  of  theology  as  a  branch 
of  academical  instruction  is  not  for  me  to  conjecture.  Ex- 
periments of  ihis  sort,  professorships  "of  all  and  any  opin- 
ions" had  better,  perhaps,  have  been  first  made  in  the  new 
institute,  a  term  broad  enough  to  comprehend  any  thing  and 
every  thing.  It  seems  a  problem  not  yet  solved,  which  is 
better — to  have  professorships  "  of  no  particular  religion  ;" — 
"  of  all  sects  in  religion,"  wrangling  it  out  in  the  best  way  they 
<:an  in  the  same  seminary; — or  professorships  "of  no  religion." 
The  old  way  was  to  have  professors  of  divinity  leaving  it  to 
the  trustees  to  elect. 

The  charter  gave  the  trustees  the  power  to  appoint  a 
treasurer  ar.d  clerk,  or  secretary,  and  to  remove  them  at 
pleasure.  The  defendant  had  been  appointed  to  both  these 
oinces  ;  but  was  removed  from  both  and  another  appointed 
before  the  acts  of  December,  1816.  The  act  of  the  26th 
of  December  iii   eiTcct  reappointed   him,   and    gave  him  as 

■S  See  Documents  relive  to  l)a:-t,  roll,  published  by  Los:.  1316.  v.  6. 


SUPERIOR  COURT,  NEW-HAMPSHIRE.  109 

treasurer  so  constituted  "  the  care,  management  and  superin- 
tendance  of  the  property  of  the  corporation  whether  real 
or  personal." 

The  same  act,  as  a  convenient  mode  of  settling  the  ques- 
tion now  before  the  court,  (and  the  legislature  were  not  then 
ignorant,  that  the  old  trustees  had,  by  a  solemn  declaration 
refused  their  assent  to  the  acts)  subjected  them,  and  the  of- 
ficers of  the  college,  those  appointed  before  as  well  as  those 
appointed  after  the  27th  of  June  1816,  to  heavy  penalties 
should  they  presume  to  exercise  their  offices,  except  under 
the  new  acts  which  they  considered  as  unconstitutional  and 
void.  Their  "  freedom  of  opinion"  consisted  in  the  right 
of  resigning — of  surrendering,  in  humble  imitation  of  their 
late  president,  their  official  rights,  leaving  it  to  the  governour 
and  council  to  appoint  others  in  their  room  ; — or  of  becom- 
ing members  of  the  new  corporation  against  the  dictates  of 
their  conscience — or  of  continuing  to  exercise  the  offices 
they  then  held,  and  as  they  believed  constitutionally  held, 
at  the  hazard  of  incurring  the  threatened  penalty. 

Such  was  the  enlightened  policy  and  liberal  views  of  the 
trainers  of  these  acts. 

After  this  brief  review  of  the  constitution  of  this  semina- 
ry as  provided  by  the  charier,  and  by  the  acts  in  question, 
it  can  hardly  be  matter  of  surprize,  that  the  independent 
members  of  the  old  board  refused  any  connection  with  the 
new.  None  but  independent  members  would  have  ventur- 
ed on  this  course.  But  I  confess  it  does  seem  strange 
!o  mo,  that  any  advocate  should  now  be  found,  gravely  to 
contend,  that  tiie  acts  have  made  no  essential  change  in  the 
corporation  as  constituted  by  the  charier.  They  have 
(hanged  the  name,  the  number  of  members,  the  manner  of 
their  appointment,  and  of  maintaining  a  perpetual  succession  ; 
have  created  a  board  of  overseers,  chosen  and  io  be  pcrprl 
uated  by  (he  state,  have  divested  the  r.oi  potation  of  the  pro- 
perty given  it  by  the  founders  and   other    donors—have  a! 


J  10  DARTMOUTH  COLLEGE  VS.  WOODWARD. 

tcred  the  uses  for  which  it  was  given,  and  applied  it  to  new 
uses  and  trusts  : — have  appointed  an  officer  for  the  corpora- 
tion and  invested  him  with  power  to  hold  their  property 
against  their  will.  They  have  made  a  new  constitution  for 
this  seminary. 

It  seems  to  make  a  necessary  part  of  the  defence  to  this 
sui!,  that  Dartmouth  College  has  passed  away — has  no  long- 
er even  a  name  tc  live.  Its  powers  and  all  its  property  have 
been  given  to  another  corporate  body,  who  are  the  real  de- 
fendants. If  the  new  corporation  come  in  the  place  of  the 
old,  then  the  old  no  longer  exists.  If  they  exist  for  any 
purpose  and  with  any  rights,  one  would  think,  the  new  cor- 
poration have  little  interest  in  denying  them  their  charter, 
common  seal,  and  records  :  and  yet  the  new  corporation 
claim  the  right  of  converting  these  to  their  own  use. — It  is 
certainly  true,  that  the  old  corporation  has  not  been  dissolv- 
ed in  any  of  the  ways  mentioned  by  law  writers,  except  on 
the  supposition  that  our  legislature,  like  the  British  parlia- 
ment, possess  unbounded  and  unlimited  power(6).  The 
counsel  are  necessarily  driven  to  that:  they  are  bound  to 
contend  that  the  acts  have  annihilated  the  old  corporation 
and  created  a  new  one  in  its  stead.  Upon  their  principles 
they  may  at  once  boldly  venture  on  this  ground.  They 
liave  asserted  in  the  broadest  and  most  unqualified  terms  the 
ight  in  the  legislature  to  do,  what  we  say  they  have  done. 
it  is  their  doctrine  that  corporations  of  this  description,  like 
clay  in  the  hand*  of  the  potter,  may  be  modified,  altered  or 
moulded  into  any  shape,  at  the  pleasure  of  the  legislature: — 
or  to  use  the  late  President  Whcclock's  language  again,  be 
made  to  undergo  such  "  organic  improvements  and  modal  re- 
forms in  its  system  and  movements, (7)  as  the  wisdom  of  the 
legislature  may  judge  expedient:" — In  short  that  all  such 
corporation?)  may  be  annihilated  by  the  legislature  "  the  true 

(f,)  1  Biac.  4S.7. 

(7  j  Sec  Doc  ;  Infive  la  Dart.  Coll.  pub.  by  Leg.  181C>,  p.  7. 


SUPERIOR  COURT..  NEW-HAMPSHIRE.  ^  j  j 

sovereign"  of  the   slate.     All    this  we  deny  aj>d  ^  ^  • 
ground  we  meet  our  opponents. 

I  shall  contend  that,  by   the  constitution  of  {fib  9(.(e 
these  acts  are  not  binding  on  the  plaintiffs  without  tl?r\»  -«_ 
sent; — and  that  they  violate  the  constitution  of  th©Oi\ifej 
States. 

To  maintain  these  positions, it  is  not  necessary  that  I  shoula 
satisfy  the  court  that  all  their  provisions  are  unconstitution- 
al. It  is  sufficient  that  any  of  them  are  so.  The  doctrine 
is  well  established, (8)  that  a  corporation  in  being,  may  take 
such  parts  of  an  amended  charter,  as  they  choose  and  reject 
the  rest ;  so,  they  may  reject  the  whole,  though  some  parts 
be  good  ; — they  are  not  obliged  to  pick  out  the  good  threads 
from  an  ill  woven  web. 

Before  we  can  determine,  as  to  the  validity  of  these  acts 
it  will  be  necessary  to  ascertain  the  true  nature  of  this  cor- 
poration, and  to  what  class  it  belongs.  Ciearly,  the  legisla- 
ture have  more  power  over  some  corporations  than  over 
others. 

Corporations  differ  from  each  other  in  their  constitution, 
powers,  and  objects  or  purposes  of  the  association.  But  some 
things  are  incident  to  them  all.  A  number  of  persons,  I  speak 
of  corporations  aggregate,  are  invested  with  a  political  char 
acter  and  personality, (9)  wholly  distinct  from  their  natural 
capacity,  and  chiefly  intended  as  the  means  of  perpetuating 
in  succession  their  rights  and  their  duties.  The  charter 
generally  specifies  the  purposes  of  the  association,  and 
marks  the  limits  and  extent  of  the  franchises  conferred,  and 
how  they  shall  be  enjoyed.  But  there  arc  many  powers, 
rights,  capacities,  &c.  inseparably  incident  to  corporations. 
If  the  charter  be  silent,  the  law  annexes  these  ;  they  are  im- 
plied ;  such  as  to  have  perpetual  succession,  the  power  ot 
electing  members  in  (he  room  of  such  as  go  off;  to  sue  01 
be  sued  ;  \o  purchase   lands   n:ul   hold  them  for  the  benefit 

I'S)  .i  Unix   1017.106.5. — UJurr   L.M90  — 1    i)    hi.  V.   ■■■>!    8  " 
"i,  i  \Vo   471  —1  lila.;.  i>'\ 


1  io  o/llTMOUTH  COLLEGE  VS.  WOODWARD 

of  »i*»«nstiA»t'°n  ;  to  have  a  common  seal,  and  (o  make  stat- 
for  $  government  of  the  corporation (10).  Though, 
ibr/>ra#  PurPoses»  Dartmouth  College  may  be  considered 
a^a/tj  V°asi  J'et  it  is  not  an  ecclesiastical  corporation  in  the 
jlhgn.-.i  sense  of  the  term(ll).  But  there  is  another  division* 
proper  to  be  stated  at  greater  length,  I  mean  of  civil  and  elee- 
mosynary corporations.  We  have  both  sorts.  Our  civil  cor- 
porations are  created  for  government,  and  for  "  the  carrying 
on  of  divers  special  purposes."  Our  counties,  towns,  parish- 
es, school  districts,  &c.  are  civil  corporations  for  government ; 
and  our  banking,  insurance  and  turnpike  companies,  are  civil 
corporations  for  particular  purposes — no  way  connected  with 
charity.  In  England,  the  general  corporate  bodies  of  the 
universities  of  Oxford  and  Cambridge  fall  under  the  head 
of  civil  corporations  ;  because  merely  for  government ;  not 
for  dispensing  alms,  but  for  governing  the  particular  colleges 
which  dispense  them.  A  civil  corporation  for  government, 
for  example,  a  town  in  this  state,  is  where  persons  living 
within  certain  limits,  are  by  the  supreme  power,  erected  in- 
to a  body  politick  for  the  exercise  of  their  civil  and  politi- 
cal rights,  and  the  performance  of  their  civil  duties — among 
these  are  the  rights  of  suffrage,  the  duty  of  supporting  pub 
tick  instruction  in  religion  and  morality,  of  supporting  schools 
and  of  executing  the  laws  for  the  maintenance  of  the  publick 
police.  The  whole  state  is  divided  into  districts  for  these 
purpose?.  Our  government  depends  for  its  organization 
on  these  corporate  bodies.  The  state  is  nothing  but  the  ag- 
gregate of  these  civil  corporations.  Annihilate  these,  and 
the  great  body  politick  could  no  longer  exist  without  an  en- 
tire new  organization.  Each  citizen,  and  all  the  citizens  are 
benefited  by  this  division  of  the  state  into  towns  or  town- 
ships. Their  rights  and  duties  are  better  and  more  advan- 
tageously performed,  in  these  districts,  than  they  could  be 
in  any  other  manner.     Towns,  generally  hold  little  or  no 


(10)  1  Wo.  474.— 1  Blac.475. 
"JM  Wo.  47?.— 1  F.lae.  470. 


SUPERIOR  COURT,  NEW-HAMPSHIRE.  1 13 

corporate  property.  They  have  few  of  the  incidents  said 
to  be  inseparable  from  corporate  bodies ;  yet  they  have  as 
many  as  are  necessary  for  the  purposes  of  the  association. 
They  stand  in  no  need  of  by-laws  or  private  statutes  for  the 
better  government  of  the  corporation,  as  the  rights  and  du- 
ties of  one,  are  the  same  as  in  every  other.  They  are  all 
governed  by  the  same  general  laws.  As  soon  as  the  terri- 
tory becomes  inhabited,  this  incorporation  takes  effect: — 
it  is  granted  many  times  before; — in  which  case,  the  lan- 
guage is  "all  who  shall  or  may  inhabit  within  certain  lim- 
its be  and  hereby  are  erected  into  a  body  politick,  &c." — 
and  the  inhabitants  of  every  town  are  "invested  with  all 
(he  powers,  rights  and  privileges  which  any  town  in  the 
slate  hold  and  enjoy  ;  and  these  are  such,  as  the  con- 
stitution and  the  general  laws,  common  and  statute,  con- 
fer. A  member  of  a  town  corporation  cannot  be  said,  in 
the  usual  sense  of  the  term,  to  accept  the  charter.  He  may 
withdraw  from  the  corporate  body,  by  removing  from 
the  limits,  when  he  pleases  and  without  its  consent. 
He  cannot  be  amoved  or  disfranchised  for  any  cause. 
These  may  properly  be  called  publick  corporations ; 
because  they  are  created  exclusively  for  publick  purposes 
— their  objects  common  to  all ;  and  not  for  the  advantage  of 
any  particular  citizen  or  citizens  ;  and  are  all  governed  by  the 
same  general  laws(12).  They  are  essential  component  parts 
of  the  state,  and  aggregately  taken  are  the  state.  Counties, 
parishes,  and  school  districts  are  of  the  same  general  nature 
as  towns,  but  more  limited  in  their  objects. 

But  we  have  civil  corporations,  which  bear  a  closer  resem- 
blance to  those  existing  at  common  law,  than  the  corporate 
bodies  (if  they  may  be  so  called)  which  have  been  just  men- 
tioned. I  allude  to  our  corporations  for  carrying-  on  the  busi- 
ness of  banking — insurance — for  making  canals — turnpike 
roads — erecting  bridges,  &c.     These  are  created  for  speciuH 

'  l '.>)  2  I).  fc  E.  352.— 4  T).  Sj  K    H  ' 

in 


il4  DARTMOUTH  COLLEGE  VS.  WOODWARD. 

purposes,  which  are  supposed  to  be  beneficial  to  the  state, 
and  advantageous  to  the  individual  members,but  which  noway 
relate  to  the  general  rights  or  duties  of  citizens  ;  or  to  the 
civil  government  of  the  state.  In  the  case  of  a  bank,  for  ex- 
ample, the  members  agree  to  raise  from  their  private  prop- 
erty a  joint  stock — they  procure  an  act  of  incorporation,  to 
enable  them  to  manage  this  property  more  beneficially  than 
could  otherwise  be  done.  When  incorporated,  the  owners 
of  this  stock  acquire  new  and  distinct  powers  and  privileges, 
in  relation  to  this  object : — these  privileges  are  special,  pe- 
culiar to  the  members,  different  from  those  enjoyed  by  the 
other  citizens. — As  the  stock  after  the  association  and  before 
the  incorporation  was  private  property,  so  it  remains  private 
property  after  the  incorporation  ;  and  the  franchise  or  privi- 
lege of  managing  it  as  a  corporate  body,  is  peculiar  to  the 
stockholders,  and  of  course  is  private  property.  This  is 
therefore  in  every  sense  a  private  civil  corporation.  The 
corporation  can  claim  and  exercise  this  corporate  franchise 
itgainst  the  state,  and  that,  on  the  score  of  compact,  as  long  as 
it  performs  the  conditions  on  which  it  was  granted  : — and  it  is 
the  province  of  the  courts  of  justice  to  judge  between  the 
corporation  and  the  state,  whether,  these  conditions  have 
been  performed  or  broken.  The  corporate  property  and 
the  members  of  the  corporation  will  of  course  be  subject  to 
the  legislative,  executive  and  judicial  controul  of  the  state  as 
to  every  thing  not  relinquished  by  the  state  ;  or  granted  to 
the  corporation  by  the  charter.  The  legislature  cannot  in- 
fringe the  grant  they  have  made  ;  they  cannot  re-create  or 
organize  anew  the  corporation,  at  their  pleasure. 

It  may  sometimes  be  a  matter  of  difficulty  to  determine,  how 
far  the  power  of  legislation  may  be  extended  in  such  cases. 
But  it  may  be  safely  affirmed  in  general  terms,  that  it  cannot 
touch  private  corporate  property  or  corporate  rights,  any 
more  than  i(  could  the  private  property,  or  private  rights  of 
^  natural  person;  the   corporation  is  a  subject  of  the  slate, 


SUPERIOR  COURT,  NEW-HAMPSHIRE.  115 

ijut  it  is  an  individual,  and  its  property  is  the  property  of  an 
individual,  though  an  artificial  one. 

Eleemosynary  corporations  are  such  as  are  constituted  for 
the  perpetual  distribution  of  the  free  alms,  or  bounty  of  the 
founder  of  them,  to  such  persons  as  he  has  directed(13).  Of 
this  kind  are  hospitals  for  the  poor,  sick,  and  impotent;  and 
colleges  or  free  schools  for  the  promotion  of  piety  and  learn- 
ing and  imparting  assistance  to  learned  men,  by  means  of 
funds,  provided  and  devoted  to  these  objects,  by  beneficent 
individuals  or  publick  bodies.  The  very  essence — sine  qua 
non— of  eleemosynary  corporations  is  properly  dedicated  to 
charitable  uses. 

A  corporation  without  any  funds  can  hardly  be  called  an 
eleemosynary  corporation  ;  because  there  are  no  alms — free 
bounty — to  be  distributed. 

When  a  number  of  individuals  create  a  fund  out  of  their  pri- 
vate property  to  carry  on  any  business  for  their  advantage  ; 
and  procure  an  act  of  incorporation,  the  better  to  effectuate 
{he  object  in  view,  this  is  not  an  eleemosynary,  but  a  civil  cor- 
poration. But  if  the  same  individuals  should  devote  this  fund 
to  a  charitable  use,  to  heal  the  sick,  educate  the  ignorant,  or 
to  improve  the  moral  condition  of  their  fellow  men,  and  ob- 
tain an  act,  or  charter,  erecting  them  into  an  hospital,  or 
free  school ;  this  would  be  a  charitable  institution,  and  the 
owners  would,  by  the  incorporation,  acquire  a  new  facul- 
ty, or  power  for  the  management,  and  application  of  this 
property  to  the  use  designated  by  them.  Their  right,  as 
individuals,  to  the  property  thus  dedicated  would  cease,  and 
become  vested  in  the  same  persons  in  their  new  character. 
The  effect  of  the  incorporation  would  be,  to  unite  several 
wills  into  one  will ;  and  several  persons  into  one  artificial  per- 
son, capable  in  law  to  hold,  manage  and  apply  this  fund.  So 
far  the  operation  is  the  same  in  this,  as  in  Hie  case  of  a  civil 
corporation.  The  difference  is  in  the  circumstance  of  the 
impropriation  of  this  property  to  charitable  uses — this  ap 
\:  ]  Mhc   'in 


116  DARTMOUTH  COLLEGE  Y&.  WOODWARD. 

propriation  is  made  by  the  individuals  and  not  by  the  arti* 
ficial  person ;  so  that  the  latter  merely  takes  and  holds,  in 
an  artificial  capacity,  what  they  before  held,  as  natural  per- 
sons, and  to  the  same  uses.  Formerly,  as  individuals,  they 
held  the  property  dedicated  to  charitable  uses ; — now,  they, 
in  their  corporate  character,  hold  it  to  the  same  uses,  and  the 
law  will  enforce  the  perpetual  execution  of  the  uses. 

The  utility  of  the  corporate  character  is  manifest.  It  is  the 
means  of  perpetuating  the  appropriation,  and  of  consolidating 
several  willsi  nto  one.  This  creature  of  the  law  was  provided, 
not  for  creating  property,  or  devoting  it  to  charity ;  but  of  en- 
abling individuals  to  live  forever,and  to  be  always  of  the  same 
charitable  mind.     The    powers   conferred    by  the  charter, 
or   tacitly  annexed  by  law,  are  just  such  as  are  wanted. 
They  are  to  it,  what  the  constitution  of  the  state  is,  to  those 
who  administer  the  government ; — or  as  Blackstonc  express- 
es it,  they  are  to  the  artificial  being,  what  the  laws  of  natur* 
are  to  natural  persons(14).    This  artificial  person  makes  by- 
laws and  statutes  for  its  government,  and  the  management  of 
its  affairs,  which  is  the  exercise  of  its  political  reason  ;  and 
such  by-laws  are  to  this  little  republick,what  the  general  laws 
of  the  state  are  to  the  great  body    of  the   people.     When 
this  artificial   person  is  created  it  is  at  once  clothed  with 
rights,  and  liable  to  the  performance  of  duties.     As  it  is  the 
creature  of  the  law  it  is  of  course  subject  to  the  law,  and  has 
rights  which  it  can  claim,  and  has  duties  to  perform,  all  which 
may  be  enforced  at  law.     It  can  claim  the  same  protection 
for  its  rights  which  natural  persons  can,  and  in  the  same  man- 
ner may  be  compelled  to  perform  its  duties.   The  principal  of 
these  duties  is  that  of  answering  the  end  of  its  creation  ; — of 
forever  holding,  managing,  and  faithfully  applying  its  proper 
ty  to  the  charitable  uses  declared  by  the  donors (15). 

In  the  case  of  civil  corporations  they  are  visitable  by  the 
judicial  courts  ;  that  is,  subject  to  the  general  and   common 

(14)  1  lilac.  408. 
r  15)  1   Blac.  47<J. 


SUPERIOR  COURT,  NEW-HAMPSHIRE.  11T 

laws  of  the  land.  There  is  no  private  person  who  can  justly 
claim  the  right  to  correct  their  misbehaviour,  and  decide  their 
controversies (16).  This  arises  from  the  nature  of  this 
kind  of  corporations.  But  the  case  is  different,  as  it  re- 
gards corporations  of  the  eleemosynary  kind.  The  real 
founder  of  these  is  he  or  they  who  provide  the  revenues  to 
be  dispensed  in  charity  (IT). 

In  early  times  the  objects  of  the  charity  wvere  generally 
incorporated.  An  individual  gave  property  enough  to  main- 
tain a  certain  number  of  instructers  and  students,  and  to 
procure  the  buildings,  books  and  accommodations  necessary 
for  the  purpose  of  education.  Without  an  incorporation  it 
is  obvious,  that  the  institution  could  hardly  be  expected  to 
outlive  the  generous  individual  who  bestowed  the  property. 
There  must  be  laws  and  regulations  too,  adapted  to  this  little 
community.  The  corporation  may  be  capable  in  law  of 
holding  the  funds  ;  but  there  must  be  persons  to  manage  and 
distribute  them,  and  to  interpret  and  execute  the  laws  of 
the  institution.  As  long  as  the  donor  or  founder  lives,  he 
is  himself  the  most  proper  person  for  these  purposes  :  and 
accordingly,  though  the  legal  property  was  by  his  consent 
transferred  to  the  corporate  body;  yet  the  law  vested  these 
powers  in  him  ;  or  rather  he  is  supposed  not  to  have  parted 
with  these  powers  by  the  donation  to  a  charitable  use.  They 
remain  in  him.  He  has  of  "common  right"  the  very  rea- 
sonable power  to  see  that  the  property  is  rightly  employ- 
ed (18)  and  he  may  transfer  this  right  to  another.  Accord- 
ingly, if  he  name  another  person,  for  these  purposes,  the 
law  adopts  his  nomination  : — if  he  omit  to  name  one,  the  law 
considers  these  powers  as  vested  in  the  heirs  of  the  found- 
er, as  (hose,  to  whom  the  legal  property  might  otherwise  have 
descended.  The  master,  fellows  and  scholars  have  \hc  lec;al 
property  and  are  to  enjoy  the  bounty  ;  but  the  donor,  his 
nominee,  or  heir,  have  the  government  and  the   controul   of 

(10)  1   l'.l.lc    481.— 1   \A    T?:.v    S 

(17)  <■>  I)  ,V  E.  :m. 
;>«<>  i  |Jtu<    4X2. 


118  j ) a RTMOUTH  COT ,LEGE  VS.  WOODW  \R1 ). 

Jhe  institution.  Wilhout  the  exertion,  and  constant  activity 
of  such  a  power, — the  power  of  visitation — 'he  charity,  we 
may  he  sure,  would  soon  come  to  an  end.  The  master, 
fellows,  and  scholars  arc  unfit  depositaries  of  this  power. 
What  security  would  there  be  that  their  duties  would  be 
performed  ?  An  interested  majority  might  oppress  the  minor- 
ity— The  revenues  might  be  misapplied  or  unjustly  divid- 
ed and  distributed, (19)  the  instructers  might  exact  too  much 
obedience,  while  the  scholars  might  be  disposed  to  yield  too 
little.  Statutes,  rules,  and  regulations,  will  often  be  wanted  : 
who  shall  make  and  enforce  them? 

These  considerations,  and  such  as  these,  satisfactorily  ac- 
count for  i\\e  office  of  visitor,  and  shew,  that  the  right  of  vis- 
itation was  created  of  necessity  by  the  common  law(20).  It 
requires  but  little  knowledge  of  the  human  heart  to  perceive, 
how  admirably  this  provision  is  calculated  to  enlarge  the 
number  of  charities,  and  to  secure  their  faithful,  and  ju- 
dicious application.  Nothing  can  be  more  flattering  to  the 
pride  of  those,  who  are  rich  enough  to  give,  than  this  do- 
minion retained  over  the  thing  bestowed.  Every  good  mind 
must  be  gratified  with  this  posthumous  power  as  it  were,  of 
dispensing  alms  to  the  deserving,  and  protecting  it,  in  all 
time  to  come,  from  abuses. 

We  have  seen  the  origin  of  visitatorial  power  and  the  neces- 
sity for  a  visitor.  His  powers  and  duties  are  well  stated  in  the 
celebrated  ense  of  Philips  and  Bury (21).  The  visitatorial 
power  is  a  necessary  one,  springing  from  the  endowment — the 
property,  which  the  founder  had  in  the  lands  assigned  to  sup 
port  the  charity.  "  The  charity  is  a  creature  of  \hc  founders, 
,md  he  may  order  and  dispose  of  his  own  as  he  pleases." — 
i(  Every  man  is  the  master  of  his  own  charity,  to  appoint  and 
qualify  it  as  he  plcaseth."  He  makes  the  constitution  for  his 
college,  and  "  the  members  must  submit  to  such  laws,  as  he  is 
pleased  to  give  them." — "They  must  be  contented  to  enjoy 

(19)2  D.  fcE.  352. 

f2(>)  1  15 Inc.  48.3.— 1  Ld.  Rav.  8.-2  1).  &  E.  353. 
21)  1  !/!.  Ra-.  5.— 1  Mwt/106.— 2  D.  &  B.340 


SUPERIOR  COURT,  NEW-HAMPSHIRE.  Hi* 

the  charity, in  the  same  manner,  (hey  received  it  from  the  foun- 
der. They  who  take  the  bounty,  must  submit  to  his  constitu- 
tion and  laws,"  which  are  his  terms  and  conditions.  The 
founder  is  patron  and  visitor  of  course  :  after-visitors  by  his 
appointment,  or  by  appointment  of  the  law,  can  do  every 
thing  which  the  founder  could  do,  except  that  of  altering 
the  constitution.  It  is  their  duty  in  every  instance,  to  effec- 
tuate the  intention  of  the  founder,  so  far  as  they  can  collect 
it  from  the  statutes,  and  from  the  nature  of  the  institution. 
They  may  make  statutes,  and  rules  for  the  government  of  the 
college, — not  repugnant  to  those  of  the  founder  or  the  law  of 
the  land.  The  king  cannot  make  statutes,  on  a  private  foun- 
dation, without  the  donors  consent.  The  visitor  has  author- 
ity at  all  times  to  hear  the  complaints,  and  redress  the  griev- 
ances of  the  members  of  the  college,  according  to  its  consti- 
tution and  statutes.  He  is  bound  to  enquire  into  the  state 
of  the  college  and  all  its  affairs,  and  to  inspect  and  regulate 
the  conduct  of  those,  who  partake  of  the  charity,  or  who 
have  any  agency  in  managing  its  concerns.  His  powers, 
though  great,  are  deemed  "most  useful  and  convenient  for 
colleges  and  learned  societies"  (22) — they  are  inherent  in  the 
private  donor  or  founder. — "Of  common  right"  they  belong 
to  him,  his  heirs  or  appointee(23).  We  shall  have  occasion  to 
mention  hereafter  the  controul  exercised  by  courts  over  the 
government  of  a  college  and  its  revenues. 

Where  the  king  founds  a  college,  this  right  of  visitation 
very  properly  belongs  to  him (24).  Our  legislature  are  not. 
satisfied  with  this,  but  claim  the  right  to  visit  institutions 
founded  by  others.  But,  by  merely  granting  the  charter  to 
a  corporation  founded  by  private  persons,  the  king  acquires 
no  right  as  founder;  nor  are  any  of  the  founder's  rights  im- 
paired.     The   "fundatio    incipient,"    or   the   incorporation 

(&!)  i  1).  fc  E.  293.-2  Vez.  Jr.  Cl'J. 

{::,)  .'  I),  fcc  H.  .i'."j.  346.  3.58.— 1  V,  /.  Si  in-,  'hi.'.  175.— v.' CI.  I!:ic.  C'J    ..',"  ■ 

Co.LUt.96.  >\  156. — J  Viz.  Jr.  4  '  njo-5. — -J  Cramli  16;,.  f,  ~  1  III- 

-iS  i.  n.  1  \. — y  [».  Win-   ".''.  —  ''.  !>  >v  i; 
<:     I    l!!u.'     iS.> 


120       DARTMOUTH  COLLEGE  "VS.  WOODWARD. 

gives  no  controul  over  the  institution  after  it  is  erected.  It 
is  the  endowment  which  confers  the  right  of  visitation (25). 
"  Patronage  and  visitation  are  necessary  consequences  one 
upon  another" (26).  "It  is  the  donor  which  creates  the 
charitable  foundation"  (27). 

But  all  eleemosynary  corporations  are  not  constituted,  in 
England,  precisely  in  the  manner  which  has  been  stated. 
Instead  of  incorporating  the  objects  of  the  charity — the  per- 
sons who  are  to  receive  the  benefit  of  it — trustees  are  some- 
times incorporated,  who  are  to  dispose  of  it  according  to  the 
will  of  the  founder  ;  that  i3,  for  the  uses  he  has  declared 
(28). 

At  the  first  settlement  of  this  country,  few  individuals 
were  rich  enough  to  found  a  college  or  any  other  charit- 
able institution,  alone  : — And  the  law  of  visitation  by  the 
heir  of  the  founder  did  not  suit  our  law  of  descent.  Accord- 
ingly, in  our  corporations  of  the  eleemosynary  kind,  trustees 
are  incorporated,  and  to  them  is  committed  both  the  funds 
and  the  visitatorial  power.  These  trustees,  by  whatever 
name  they  are  called,  are  generally  the  principal,  and  most 
respectable  donors.  It  never  occurred  to  our  wise  men  of 
former  days,  that  the  best  way  of  promoting  any  charitable 
design,  was  to  give  the  funds  to  the  publick  ; — or  to  deny 
to  these  corporations  the  power  of  perpetuating  themselves. 
It  is  believed  that  the  colleges,  academies,  free  schools,  hos- 
pitals, asylums,  the  theological  institution  at  Andover,  and 
charitable  institutions  generally  in  New-England,  and  in  the 
other  states  of  the  union  have  been  endowed  and  incorporat- 
ed in  the  way  just  mentioned.  When  the  government,  or 
official  men  of  high  standing,  are  pleased  to  enrol  themselves- 
among  the  benefactors,  some  high  and  permanent  officer  or 
officers  of  the  government  are  constituted  members  ex-offi- 
cio. 

(2,-i)  1  Elac.  481. 

(iifi)  2  D.  k  E.  352. 

(271  1  Vez.  Senr.  472.  by  Lord  Hardwicke. 

f  28)  1  Vez.  Senr.  472.-2  D.  &  E.  352.  3.— 10  Co.  2S 


SUPERIOR  COURT,  NEW-HAMPSHIRE.  121 

From  the  nature  of  a  charity  constituted  in  this  way  it  is 
manifest,  that  a  visitor,  as  distinct  from  the  trustees  or  gov- 
ernors, is  not  wanted  : — "  A  visitor  does  not  in  such  case 
arise  by  implication,but  the  trustees  have  thai  power"(29). — 
It  would  savor  of  absurdity  to  give  one  man,  under  the  name 
of  visitor  or  overseer,  the  controul  over  ten  men,  as  capable 
of  executing  the  trust,  and  as  disinterested  as  himself.  And 
if  he  has  no  such  power,  his  office  would  be  somewhat  like 
that  of  the  old  overseers  of  a  will,  whose  only  power  was  to 
hold  the  candle  while  the  executors  counted  the  money.  In 
the  charter  of  Andover  Academy,  and  i*  is  believed  some 
others  of  our  institutions,  the  trustees  are  called  "visitors," 
and  "  sole  visitors."  But  whether  so  called  or  not,  it  is  ve- 
ry apparent,  that  the  whole  power  of  visitation  is  vested  in 
them:  they  are  visitors,  governours,  and  overseers  of  the 
charity,  as  well  as  the  legal  owners  of  the  funds: — appoint- 
ed by  the  founders  and  donors  as  their  perpetual  represen- 
tatives, to  protect  the  interests  of  the  charity.  The  law 
confers  on  them  full  power  for  so  doing  : — And  the  same  law, 
as  we  shall  see,  furnishes  the  most  effectual  means  of  cor- 
recting any  abuses  of  the  trust.  This  mode  of  constituting 
an  eleemosynary  corporation  does  not  vary  its  nature.  In 
the  other  mode,  the  objects  of  the  founders  bounty  hold 
the  property,  and  the  visitor  has  the  perpetual  power  of 
governing  it.  Both  the  corporate  property,  and  the  power 
of  governing  the  institution  are  private  ;  because  the  proper- 
ty designated  to  the  charity  was  private.  In  this,  ihe  trus- 
tees have  united  in  them,  the  property  and  the  power  of 
visitation,  subject  as  to  the  former,  in  a  particular  manner,  to 
the  controul  of  the  judicial  courts: — and  the  visitatorial  power 
is  transferred  to  the  trustees  by  Ihe  founders  or  donors 
themselves,  as  effectually,  as  if  done  by  deed.  These  do- 
nors also,  in  the  charter  which  they  procure,  make  such  con- 
stitution for  the  charity,  as,  in  the  plenitude  of  (heir  power 

!  Vc/.  Senr.  47-2.— 10  »V  r 

17 


122  DARTMOUTH  COLLEGE  VS.  WOODWARD. 

they  think  meet: — "the  king  makes  the  corporation,  but 
the  founder  has  power  to  dispose  and  order  it  as  he* 
thinks  fit:"  (30) — and  the  will  of  the  donor  is  a  fundament- 
al law  to  the  trustees.  If  they  deviate  from  it,  they  vio- 
late their  trust ;  and  the  procedure  may  be  corrected,  and 
where  wilful,  the  trustees  punished.  So,  any  after-donor 
may  give  on  such  terms  and  conditions  as  he  chooses  :  and 
by  these,  the  trustees  are  bound,  if  they  accept  the  donation. 
In  all  this  good,  I  had  almost  said  divine,  work  of  charity, 
it  may  be  thought  that  I  have  taken  too  little  notice  of  the 
king  as  acting  for  the  nation.  I  do  consider  the  real  efficient 
parties  to  be,  first  of  all,  the  founder  or  donors  ;  then,  in  a 
case  like  this,  the  objects  of  their  bounty — the  persons  to  be 
educated  as  tbey  come  in  succession  on  the  stage.  I  con- 
sider the  incorporation  of  trustees,  as  giving  to  them  the  le- 
gal and  equitable  property  in  the  funds  destined  to  the  chari- 
ty ;  and  the  charter  as  affording  the  most  perfect  evidence 
of  the  mind  and  will  of  the  donor,  that  they  should  during 
life,  that  is  forever,  possess  and  exercise  all  his  rights  and 
powers  as  founder  and  visitor.  At  the  same  time  I  admit 
there  must  be  another  party,  in  the  transaction  ;  and  that 
there  can  be  no  incorporation  without  the  consent  of  the 
king  or  supreme  power  ofthe-state.  He  may,  if  he  pleas- 
es, leave  individuals  to  administer  their  own  charitable 
funds  in  their  own  way,  with  no  other  means  of  continuing  the 
property,  than  by  endless  conveyances  from  one  to  another; 
and  no  other  power  of  government  over  the  institution,  than 
what  reason  and  a  sense  of  moral  obligation  may  supply. — 
If  it  were  an  object  to  discourage  education,  a  disposition 
sometimes  imputed  to  kings,  he  would  undoubtedly  take  this 
course.  I  admit  also  thaL  he  has  the  power,  and  that  it  is  his 
duty  when  applied  to  for  a  charter,  to  judge  of  the  utility  of 
the  particular  design  in  hand,  and  to  make  the  beat  bargain 
ye  can  with  the  charitable  donors  respecting  the  establish* 
fSO)  C.  J-  Holt,  12  Mo'l.  232. 


SUPERIOR  COURT,  NEW-HAMPSHIRE.  123 

Eient. — Undoubtedly  Ihe  terras  of  the  charter  are  matter  of 
compact  between  these  parties: — the  general  views  of  both 
must  be  the  same,  but  each  may  judge  for  itself,  as  to  the 
details. 

In  ancient  times,  these  charters  were  very  laconic,  as 
much  so,  as  the  acts  incorporating  some  of  our  towns.* 
The  law  conferred  the  necessary  powers  and  capacities. 
But  in  later  times,  the  charter,  or  act  of  incorporation  usually 
contains  the  fundamental  laws,  that  is,  the  constitution  of  the 
body,  and  such  special  provisions  as  are  thought  necessary 
by  the  donor,  and  approved  by  the  king,  to  effectuate  the 
ends  proposed.  The  law  which  has  a  remedy  for  every 
real  grievance,  provides  that  in  case  the  king  should  be  be- 
trayed into  an  improper  grant, — one  hurtful  instead  of  benefi- 
cial to  the  publick  or  nation,  the  charter  may,  when  so  ad- 
judged in  due  course  of  lavv,  be  repealed. 

I  have  been  thus  particular,  in  stating  my  ideas  of  the  na- 
ture of  publick  and  private  civil  corporations,  and  the  nature 
of  charitable  institutions  in  general,  and  of  the  rights  and 
powers  of  the  founder  and  of  visitors  in  particular,  from  a 
belief,  that  it  is  all  important  to  a  correct  decision  oi"  this 
cause:— without  this  we  shall  never  come  to  a  correct  result. 
I  could  refer  the  court  to  many  cases  and  passages  in  the 
books  which  treat  of  corporations  but  have  thought  it  un- 
necessary, believing  the  current  of  authorities  to  be  strong, 
in  favour  of  the  view  I  have  endeavoured  to  present  of  the 
subject. 

Let  us  now  examine  the  constitution  of  Dartmouth  Col- 
lege. 

lis  original  funds  arose  altogether  from  the  donations  of 
individuals  :  principally  obtained  through  the  agency  of  Dr. 
Eleazer  YVheelock.      In  no  sonsr,   and   in  no  way  can  it  be 
said,   that  they   originated   with   the  king  or    the  publick 
Not  a  cent  of  money,  or  an  aero  of  land  was  given  by  the 

^  '  "  That  Trnmyitaine  be  calk-d  IJof/»i   "—And,  that  "  Wiunicumir-t  h>:  ci.ll.-rt 
f-Tr.mpUm,"  -Sec 


124  DARTMOUTH  COLLEGE  VS.  WOODWARD. 

province  or  any  publick  body,  till  long  after  the  college  went 
into  operation.  Who,  that  has  the  smallest  acquaintance 
with  the  law  of  eleemosynary  corporations,  can  read  the 
charier  and  not  perceive,  that  this  corporation  was  consider- 
ed by  its  framers,  as  eleemosynary  ?  * 

It  speaks  of  the  funds  as  private  from  beginning  to  end ; — 
Dr.  Eleazer  Wheelockas  the  agent  in  procuring  them; — treats 
him  as  the  founder ; — as  requesting  the  charter  ; — suggesting 
its  various  provisions  and  nominating  the  trustees : — who  can 
read  it  and  then  say,  that  this  was  not  just  what  he  would 
have  it  to  be.  It  is  just  what  the  law  says  it  ought  to  be  ;  the 
creature  of  the   founder  or  donors. 

I  have  already  said,  and  I  repeat  it,  that  in  my  poor  judg- 
ment, it  is  an  excellent  one,  and  does  great  honour  to  the 
head  and  heart  of  its  author. 

The  college  was  erected,  and  the  trustees  made  a  body 
politick  with  certain  powers  and  privileges,  particularly 
that  of  perpetuating  themselves,  to  effectuate  the  charitable 
design  of  its  donors.  The  incorporation,  and,  in  this  form, 
was  a  mean  to  that  end. 

Throughout  the  whole  charier  the  corporation  is  treat- 
ed as  a  private  one,  and  as  a  party  grantee,  standing  in> 
the  place  and  sfead  of  the  donors.  In  what  part  of  this 
instrument  do  we  find  any  evidence  of  a  transfer  of  the 
property  to  the  king  or  the  publick?  It  seems  not  a  little 
absurd  to  talk  of  the  grant  of  the  privilege  and  pow- 
er of  managing  the  property,  and  governing  the  institu- 
tion granted  by  the  king  to  certain  persons,  having  the 
power  io  perpetuate  themselves,  as  powers  and  privileges 
granted,  in  any  sense,  to  the  king  or  the  publick.  Suppose 
it  had  been  intimated  at  the  time  of  granting  the  charter 
that  its  effect  end  operation  would  be,  to  pass  the  property, 
and  place  it  beyond  the  controul  of  the  corporation: — that 
the  king  or  his  successors,  even  the  republick,  If  its  existence 
;iad  been  then  foreseen,  might,  whenever  they  chose,  become 


SUPERIOR  COURT,  XEW-HAMPSHIRE.  125 

the  governours  of  the  institution,  instead  of  Dr.  Eleazer 
Wheelock,  and  the  rest  of  the  trustees  ?  there  might  indeed 
have  been  a  college  created — on  paper;  but  it  would  have 
been  like  your  university  with  its  eighteen  professorships, 
without  professors- — with  its  many  colleges,  its  institutes 
and  fellows,  without  funds, and  without  that  confidence  which, 
is  able  to  procure  them  ; — which  has  no  patron  (for  the  leg- 
islature bestow  nothing  but  the  improved  charter)  except 
its  late  President,  who  will  trust  no  legislature  but  the  pres- 
ent. The  king  might  have  incorporated  a  college; — But 
he  must  have  been  the  patron  himself.  Dr.  E.  Wheelock 
never  would  have  parted  with  his  funds  on  any  such  terms. 

This  charter  gives  the  donors  all  the  security,  which  a  char- 
ter can  give,  that  they  shall  have  the  administration  of  these 
funds  forever.  They  are  vested  in  trustees  "  to  be  ex- 
pended in  the  education  and  instruction  of  youth  of  the  In- 
dian tribes,  in  this  land,  and  also  of  English  youth,  and  any 
others."  All  the  powers,  franchises,  and  immunities  usual- 
ally  bestowed  on  colleges  are  granted,  and  in  terms  irrevo- 
cably granted,    to   the   trustees,   named  in   the  instrument. 

The  law  then  of  eleemosynary  corporations,  so  constituted 
in  England,  or  in  this  country,  the  common  law  is  the  law  of 
this  corporation.  Whatever  any  charitable  institution  can 
claim  to  hold,  as  to  their  property,  offices,  and  corporate 
franchises  against  the  king,  the  state,  and  all  the  world,  this 
corporation  can  claim  and  hold.  We  are  now  in  a  court  of 
law  :  and  I  need  not  say,  that  I  speak  of  our  legal  rights. 
What  arbitrary  power  can  do,  or  attempt  to  do,  is  not  the 
question:  but  can  the  legislature,  by  a  legislative  act  change 
the  constitution  of  this  seminary,  and  new  model  it  at  their 
pleasure  1  I  contend  they  have  no  such  power  :  because 
this  is  private  proper!}  ,  both  as  it  respects  the  funds:,  and 
the  corporate  franchises.  Our  opponents  contend  that  this 
is,  what  they  are  pleased  to  call  a  publick  corporation,  cre- 
ated exclusively  for  the  publick  interest  ;  and  to  make  sure 


*26  DARTMOUTH  COLLEGE  VS.  WOODWARD. 

work  of  if,  that  even  if  the  corporation  be  a  private  one, 
the  legislature  had  the  right  of  making  the  alterations  they 
have  made.  I  do  not  understand  the  defendant's  counsel 
as  denying  that  there  are  in  this  country  eleemosynary  cor- 
porations. Nothing  can  be  clearer  than  that  Dartmouth 
College  was  of  (hat  description. 

There  are  two  respects,  indeed  in  which  cbaritabte 
corporations  may,  in  a  certain  sense,  be  considered  as 
publiek  or  private.  1.  The  properly  may  arise,  and  the 
endowment  be  made,  by  the  king,  in  which  case  it  is 
an  institution  of  "  royal  foundation."  If  the  state  found 
a  college  and  endow  it  out' of  state  property,  th'13  would, 
in  respect  of  the  foundation,  be  "a  publiek  institution." 
And  we  freely  admit,  that  where  the  state  are  the  pa- 
trons of  a  college,  they  may  justly  claim  the  superin- 
tendence and  government  of  it.  Where  the  endowment  is 
by  an  individual  or  individuals,  in  the  same  sense  the  in- 
stitution is  a  private  one.  It  will  not  be  pretended  that 
Dartmouth  College,  in  this  sense,  is  a  publiek  institution, 
Though  the  state  have  given  lands  they  were  not  the  real 
founders.  They  were  not  the  first  benefactors,  who,  and 
who  only,  are  considered  as  founders.  These  grants  imply 
that  the  college  was  founded  ;  and  they  are  made  on  such 
terms  and  conditions  as  the  state  thought  fit.  2.  One  char- 
ity may  be  distinguished  from  another  on  account  of  its  ex- 
tensiveaess.  When  the  objects  of  the  charity  are,  or  may 
be,  many,  it  is  in  this  sense  publiek ; — when  one  only,  or  a 
small  number,  private.  In  this  sense  I  agree  this  was  a 
publiek  charity.  Many  were  intended  to  be  benefited,  and 
many  have  been  educated  in  this  respectable  seminary. 
Perhaps  no  college  has  done  more  good,  with  so  small 
means. 

The  number  of  the  objects  of  the  charity  may  af- 
fect the  remedy  to  enforce  the  execution  of  a  trust ;  but  we 
$eny  that  it  all  affects  the  right    of  patronage  ; — the   rights 


SUPERIOR  COURT,  NEW-HAMPSHIRE'.  *~? 

and  powers  of  the  founder  or  donors;' or  the  visitatorial 
power.  Property  given  in  trust  for  an  individual,  or  a  small 
number  of  persons,  is  usually  given  to  private  trustees,  who 
never  become  incorporated.  They  hold  and  manage  it  as 
private  persons  rand  chancery  compels  Vuu  execution  of  the 
trust.  When  property  is  given  to  uses,  it  passes  to  cestui 
que  use.  There  may  be  cases  in  this  country,  where  the 
same  thing  would  take  place,  in  the  case  of  property  giv- 
en in  trust.  There  are  also  cases,  where  chancery  com- 
pels a  conveyance  of  i'ne  legal  estate  to  cestui  que  trust. 
But  wiiere  the  objects  of  the  charity  are  not  designated  by 
the  donor,  devisor,  or  testator,  but  are  to  be  selected  by  the 
trustees,  at  their  discretion,  chancery  does  not  take  the  le- 
^al  or  equitable  property  from  the  trustees;  but,  leaving 
fhem  in  the  exercise  of  the  power  and  discretion  bestowed, 
and  confided  in  them,  by  the  donor,  &c.  superintends  tho 
execution  of  the  trust — corrects  all  abuses,  and  sees  that 
the  beneficial  uses  are  not  disappointed. 

But  it  is  proper  that  we  should  confine  our  attention  at  pre- 
sent to  the  cases  of  charities  incorporated.  In  the  sense  of 
"  exteusiveness"most  eleemosynary  corporations,  and  all  col- 
leges, whether  the  endowment  were  by  the  publick,  or  by  pri- 
vate persons,  are  publick.  The  objects  are  many,  and  to  be 
selected  by  the  corporation,  its  governours  or  visitors.  It  is 
to  be  managed  in  an  institution  or  society  ; — small,  when 
compared  with  the  whole  state,  but  large  when  compared  with 
the  objects  of  limited  and  special  trusts,  created  in  deeds, 
wills,  ike.  and  where  executors,  or  particular  persons,  are 
to  execute  them.  It  is  manifest  that  such  institutions,  as 
colleges,  must  be  managed  by  some  disinterested  and  dis- 
creet person  or  persons.  Hence  originated  corporations — 
the  powers  of  founders,  donors — the  office  and  duly  of  vis- 
itor, &c.  Now  where  are  the  cases,  authorities  or  even 
dicta  to  be  found,  shewing,  that  the  "  extensiveness  '  (.; 
the  charity  affects  the  right  of  donor"    founders.   <>■  '    .-1     - 


128  DARTMOUTH  COLLEGE  VS.  WOODWARD. 

supplying  their  places? — that  if  the  charily  is  extensive,  the 
right  of  patronage  is  lost;  the  king  is  patron, and  may  gov- 
ern the  institution,  and  visit  it  as  a  private  founder  does, 
and  new-model  its  constitution  at  his  pleasure  ?  Where 
do  we  find  a  division  of  eleemosynary  corporations  into 
publick  and  private,  and  a  different  law  for  each  ?  It 
seems  incumbent  on  our  opponents  to  produce  such  au- 
thorities. The  thing  does  not  seem  reasonable  in  itself. 
The  munificent  friend  of  learning  who  bestows  property 
enough  to  educate  one  hundred  ingenious  young  men, 
destitute  of  the  means  of  education,  seems  to  have  as  much 
right,  to  say  the  least  of  it,  to  govern  them,  and  superin- 
tend their  education,  as  he  who  provides  for  the  education  of 
ten  only.     No  such  line  is  drawn  in  any  case. 

The  opinion  of  lord  Hardwicke,  in  the  attorney  general 
against  Pearce(31),  is  supposed  to  militate  with  this  doc- 
trine. The  question  was,  on  the  construction  of  a  will,  in 
which  the  testatrix  bequeathed  a  certain  sum  to  each  of 
the  publick  charities,  mentioned  in  the  will  of  Mrs.  S.  of 
which  she  was  executrix.  Several  charities  of  a  publick 
nature  were  given  in  Mrs.  S.'s  will.  What  did  the  testatrix 
in  the  last  will  mean  by  publick  charities,  was  the  question. 
Lord  Hardwicke  was  of  opinion  the  word  "  publick  was 
used  by  way  of  description.  The  extensiveness  of  the 
charity  makes  it  publick."  "  A  devise  to  the  poor  of  a  par- 
ish is  a  publick  charity.  Where  the  trustees  have  a  dis- 
cretion to  choose  out  the  objects,  though  each  particular  ob- 
ject may  be  said  to  be  private,  yet,  in  the  extensiveness  of  the 
benefit  accruing  from  them,  they  may  very  properly  be  call- 
ed publick  charities.  A  sum  to  be  disposed  of  by  a  particu- 
lar person,  and  his  executors,  among  poor  house-keepers,  is 
a  publick  charity."  In  the  same  sense,  I  admit  that  Dart- 
mouth College  was  a  publick  charity ;— not,  as  lord  Hard- 
wicke observes,  that  the  charter  of  the  crown  has  made  it  so  ; 

(311  3  Alk.  87. 


SUPERIOR  COURT,  NEW-HAMPSHIRE.  129 

for  that  only  makes  it  more  permanent,  than  it  otherwise 
would  be.  Certainly,  Dartmouth  College  is  uncommonly 
exfensire  io  its  objects  ;  for  it  embraces  in  the  arms  of  its 
charity, — "  the  Indians  in  this  land,  English  youth,  and  oth- 
ers  ;" — and  extensive  in  its  uses— the  spread  of  the  gospel,as 
well  as  the  education  of  youth. 

But  what  will  our  opponents  do  with  lord  Hardwicke's 
case,  of  a  devise  to  the  poor  of  a  parish,  or  a  sum  to  be  dispos- 
ed of  among  poor  house-keepers  ? — These  are  publick 
charities.  Does  the  administration  of  these  belong  to  the 
king  or  the  state? — and  can  the  legislature  interfere  in  the 
superintendence  and  management  of  the  funds,  or  in  the  se- 
lection of  the  objects  ?  The  same  remark  would  apply  to 
lands  given  to  a  town  for  the  use  of  the  ministry  or  schools-. 
Can  the  legislature  change  the  trustees  without  the  consent 
of  the  town,  that  is,  of  those,  in  whom  the  donor  or  testator 
has  placed  both  the  fund3  and  his  confidence  ?  Have  the 
legislature  the  same  supervision  of  these  funds,  as  they  have 
of  publick  money,  publick  officers,  and  the  publick  property 
of  the  state? 

Philips  and  Bury  was  the  case  of  a  college.  It  was  found- 
ed by  a  private  person  (William  Stapleton).  The  rec- 
tor and  fellows  were  made  a  body-politick ; — and  by  the 
founder's  statutes,  the  bishop  of  Exeter  and  his  sucess- 
ors  were  constituted  visitors.  The  visitor  deprived  the 
rector.  The  latter  brought  an  ejectment  for  the  rectery- 
house  ; — still  claiming  to  be  rector.  It  did  not  occur  to  the 
three  learned  judges  of  the  king's  bench,  who  held  that  the 
king's  courts  had,  in  that  case,  jurisdiction,  that  this  being  a 
publick  corporation,  the  bishop  of  Exeter  had  no  jurisdic- 
tion : — that  the  property  was  publick  properly,  because 
dedicated  to  a  very  extensive  charitable  use  ; — nn  use  every 
way  publick ;  and  so  the  college  visitable  by  the  king  in  bis 
courts,  and  no   where    else.      This  would  have   made  very 

18 


130      DARTMOUTH  COLLEGE  VS.  WOODWARD. 

short  work  of  the  dispute,  between  the  visitor  and  Df.  Bu- 
ry, the  deprived  rector. 

C.  J.  Holt  and  the  House  of  Lords  were  just  as  ignor- 
ant of  this  doctrine — of  eleemosynary  corporations  devoted 
to  publick  uses,  being  publick  corporations,  and  so  sub- 
ject to  no  visitation,  but  merely  to  the  common  law  of  the 
land,  and  in  the  court  of  king's  bench, — where,  and  where 
only,  according  to  this  doctrine,  all  misbehaviour  of  colleg- 
es must  be  enquired  into,  and  redressed,  and  all  their  con- 
troversies decided.  On  the  contrary,  they  held  "that  the  vis- 
itor's authority  was  by  the  common  law"--"  the  founder  hav- 
ing reposed  in  him  so  entire  a  confidence  that  he  will  admin- 
ister justice  impartially" — and  in  the  government  of  the  in- 
stitution faithfully  execute  his  intentions — "  that  his  deter- 
minations are  final,"  and,  under  the  circumstances  of  that 
case,  "  examinable  in  no  other  court  whatsoever"  (32). 

C.  J.  Holt,  in  the  same  case(33)  says,  that  corporations 
constituted  for  private  charity  (and  he  applies  this  to  Exe- 
ter College)  are  entirely  private  and  wholly  subject  to  the 
rules,  laws,  &c.  of  the  founders"  or  donors  "and  to  no 
others." 

In  another  report  of  the  same  case(34),  the  language  is, 
•'But  private  and  particular  corporations  for  charity, (apply- 
ing this  to  the  same  college)  founded  and  endowed  by  pri- 
vate persons,  are  subject  to  the  government  of  those  who 
erect  them ;" — meaning  here,  the  person  who  provides  the 
revenues,  not  the  king,  who  gives  the  charter.  All  the  cas- 
es speak  of  colleges  founded  by  individuals,  as  subject  to 
private  visitation  ; — treat  the  property  as  private  property  ; 
—and  the  king,  as  having  no  superintendence,  or  controul, 
except  that,  which  flows  from  the  exercise  of  judicial  pow- 
er ;  which  we  shall  have  occasion  to  consider  hereafter. 

(32)  1  lilac  480. 3—1  L.Ray  5  —2  D.  So  E.  31C. — 2  Kyd  on  Corp.  179:— 
-t  See  also  2  D.  k  E.  2!)(>-3i5- 

(33)  1  L.  Ray.  8- 
r34)2D.&E.?5?- 


SUPERIOR  COURT,  NEW-HAMPSHIRE.  181 

It  has  been  stated  here,  and  elsewhere,  that  acts  of  incor- 
poration, of  a  similar  nature  to  the  present,  have  been  fre- 
quently amended,  and  changed  by  the  legislature ; — for  ex- 
ample, the  boundaries  of  towns  altered, — towns  divided, &c. 

If  lam  correct  in  what  I  have  stated  of  the  nature  of  our 
towns  and  other  civil  corporations  for  government, — such 
as  regard  the  publick  policy  of  the  country, — the  adminis- 
tration of  justice,  &c.(35)  the  argument  from  precedent 
is  quite  inapplicable.  There  is  no  analogy  between  those 
and  eleemosynary  corporations.  As  it  respects  counties, 
towns,  parishes,  and  smaller  divisions,  why  should  not  the 
legislature  regulate  their  limits,  and  alter  them  as  occasion 
may  require  ;  just  as  they  arrange  the  militia  into  divisions, 
brigades,  regiments  I  &c.  The  one  arrangement  is  made,  for 
the  more  convenient  performance  of  some  of  the  duties, 
which  citizens  owe  the  state  ;  and  the  other  division,  for  the 
more  convenient  performance  of  other  similar  duties.  "These 
sorts  of  corporations,"  says  C.  J.  Holt(36),  "are  subject 
to  no  founder,  or  visitor,  or  particular  statutes,  but  to  the 
genera!  and  common  laws  of  the  realm,  and  by  them  they 
have  their  maintenance  and  support."  So  Mr.  Justice  Story 
in  Terret  vs.  Taylor(37)  "  the  legislature  may,  under  prop- 
er limitations, have  a  right  to  change,  modify,  enlarge  or 
restrain  them"  (speaking  of  corporations  which  exist  only  for 
publick  purposes  such  as  counties,  towns,  &c.)  "  securing, 
however,  the  property,  for  the  uses  of  those,  for  whom,  and 
at  whose  expense,  it  was  originally  purchased."  Do  the  de- 
fendants counsel  contend,  that  if  a  town  should  acquire  by 
gift,  or  otherwise,  a  fund  for  the  support  of  a  school,  for  the 
inhabitants  of  such  town,  that  the  legislature  could  constitu- 
tionally annex  another  town,  giving  to  all  the  inhabitants  of 
the  new  corporation,  equal  right  to  participate  in  this  fund  1 

But  it  has  been  much  insisted  on,  that  this  corporation  is,rt 
publick  one, and  its  funds,  franchises  and  immunities  have  be 

(.,5)  4  I),  k  E.2-U- 
(.>£)  1  I,,  liav  8. 
f3~j  (J  Crunch  52 


132  DARTMOUTH  COLLEGE  VS.  WOODWARD. 

come  publick,  and  so  subject  to  legislative  controul, — be- 
cause the  public k,  and  not  any  particular  individuals — wheth- 
er trustees  or  others, — have  exclusively  the  whole  beneficial 
interest ;  and  the  legislature  are  the  guardians  of  that  inter- 
est; — The  trustees  are  mere  publick  agents,  and  removable 
at  pleasure,  &c 

This  claim  of  right  seems  to  be  founded,  on  the  greatness 
of  the  gift.  An  individual  bestows  a  sum,  the  income  to  be 
dispensed  in  charity,  among  some  few  individuals.  This  is 
a  limited  charity  and  the  publick  have  no  claim.  But  he  en- 
larges the  fund  as  his  love  for  bis  fellow-men  enlarges, — pro- 
vides for  a  proportionate  increase  of  the  objects  to  partici- 
pate in  his  bounty, — and  to  make  the  charity  perpetual  pro- 
cures an  artificial  being  to  be  created,  with  the  right  and  pow- 
er of  dispensing  it  forever,  according  to  his  mind  and  will. — 
This  operates  as  a  transfer  of  the  property  to  the  state ; 
and  is  a  virtual  repeal  of  the  powers  and  privileges  granted 
by  law  to  him  as  patron  and  founder. 

The  state  it  is  thought  have  a  right  to  say  to  this  gener- 
ous individual,  "you  intended  this  for  us  and  not  for  your- 
self : — why  do  you  complain  that  we  choose  to  manage  it 
in  our  own  way  ?  We  know  better  what  we  want,  and  what 
will  benefit  us  than  you  do.  Depend  upon  it  we  will  man- 
age it  well."  To  all  this,  may  not  the  donor  reply,  "  I  had 
rather  do  you  the  favour  in  my  own  way.  I  supposed  I 
had  your  solemn  engagement,  that  I  might  do  so.  If  you 
take  back  your  grant,  I  will  take  back  mine."  This  would 
seem  reasonable.  C.  J.  Holt  in  Philips  vs.  Bury  seems  to 
be  of  that  opinion.  "  The  will  of  the  donor  is  his  reason 
for  ordering  and  disposing  of  his  own,  &c.  But  Holt  lived 
more  than  a  contury  ago.  But  where  do  we  find  it  written 
in  the  law,  that  those  who  are  to  enjoy  the  beneficial  use  of 
college  funds,  can  claim, — or  that  any  person  in  their  behalf, 
or  as  their  trustees  or  guardians  can  claim  to  hold  and  man- 
age the  funds,  and  superintend  the  institution,  which  the  do- 


SUPERIOR  COURT,  NEW-HAMPSHIRE.  1  33 

nors  have  placed  in  other  hands  ?  This  doctrine,  1  sup- 
pose must  be  looked  for  among  the  leges  non  scripts.  It 
seeras  little  better  founded,  than  the  much  older  one,  that 
dominion  is  founded  in  grace.  It  harmonizes  about  as  well 
with  the  law,  as  the  doctrines  of  a  sect  of  modern  philanthro- 
pists, the  basis  of  whose  system  is,  "  that  the  land  holders 
are  not  proprietors  in  chief, — but  mere  stewards  :  —  the  land 
is  the  people's  farm." 

This  beneficial  interest  in  the  state,  which  is  every- 
thing, (if  any  thing  like  what  is  claimed,) — how  is  it  to 
be  enforced  ?  when  violated,  what  is  the  remedy  ? — 
Would  an  action  lie  in  the  name  of  the  state,  against  the 
corporation,  to  recover  the  college  lands  7  And  as  to  the 
government  of  the  institution,  could  the  state  confer  a  de- 
gree in  the  arts  ?  (I  admit  their  competence  to  judge  of  the 
qualifications  of  the  candidates) — could  they  appoint,  or  re- 
move, an  officer  of  the  college  ?  We  admit  the  right  of  the 
judiciary  to  enforce  the  trusts,  as  far  as  courts  have  ever 
gone,  or  ought  to  go.  But  this  concession  avails  the  de- 
fendant nothing.  Has  the  state  no  way  of  enforcing  its 
rights  but  by  its  legislative  acts  ?  This  proves  that  it  has 
no  such  claim  in  law  or  justice.  Every  legal  or  equitable 
right  has  its  remedy. 

When  the  state  asserts  its  claims  to  disputed  rights  by 
legislative  acts,  it  is  an  admission  that  its  claims  will  not  bear 
examination. 

Is  it  pretended  that  the  state  has  the  same  estate  and  in- 
terest in  the  college  lands  and  funds,  as  in  the  medical 
house  ?<\38)  There,  the  state  secured  a  title  to  themselves  in 
the  land,  before  they  erected  the  building,  and  then  became 
proprietors  of  the  land,  building  and  all  :  and  so  made  a  good 
speculation  out  of  the  college  As  to  these,  no  one  has  ev- 
er called  in  question  their  title. 

But  the  truth  is,  the  right  now  claimed  for  the  state,  is  a 
hie  discovery.      Did  the  stale  of  Vermont   understand   tha! 

(38)Seunc<  22.]  .Time  (S'i'i 


134  DARTMOUTH  COLLEGE  VS.  WOODWARD 

this  state  made  any  such  claim,  when  they  (Vermont)  made 
the  liberal  grant  of  lands,  mentioned  in  the  statement?  Were 
those  lands  granted  for  theexclustve  benefit  of  New-Hamp- 
shire ?  What  act  of  this  state,  before  1816,  asserts,  or  hints 
at,  any  such  claim  ?  So  far  from  it,  that  all  the  proceedings 
of  the  state  imply  the  contrary  ? 

In  the  act  of  1789  granting  lands  to  the  college,  the  pre- 
amble states,  "that  the  institution  had  been  and  would  be 
useful  to  mankind  in  general,  and  this  state  in  particular." 
the  grant  is,  "to  the  Trustees  of  Dartmouth  College  their 
successors,  and  assigns  forever,  for  the  benefit  of  said  col- 
lege ;"— not  for  the  benefit  of  New-Hampshire.  It  is  well 
known,  that  colleges  are  intended,  (and  are  always  so  admin- 
istered) to  be  open  to  all ;— no  regard  is  had  to  state  lines. 
Conditions  were  annexed  to  the  grant,  implying  that  without 
such  conditions,  the  disposal  of  the  avails  of  the  grant  was 
entirely  with  the  trustees ; — "that  in  the  expenditure,  and 
application  of  this,  and  all  grants  made  by  the  state,  the  su- 
preme executive  magistrate  and  council  should  be  incorpo- 
rated with  the  trustees." — The  grant  of  1807  contains  simi- 
lar conditions,  and  declares  a  particular  use,  or  trust,  iu  rela- 
tion to  the  avails  : — appropriating  them  "  wholly  and  exclu- 
sively'''' to  assist  the  education  of  the  indigent  youth  of  this 
state.  This  was  hardly  generous  as  it  respects  Vermont. 
Bn!  the  legislature  had  aright,  with  respect  to  their  own  to 
bo  selfish.  The  trustees,  in  relation  to  the  avails  of  this 
grant,  are  to  be  "responsible  and  subject  to  the  direction 
of  the  legislature,  for  the  faithful  discharge  of  their  trust 
relative  thereto."  These  conditions,  the  state  had  a  right 
to  annex  to  their  grants,  and  when  the  grants  were  accepted, 
flic  conditions  were  binding  on  the  trustees.  But  do  not 
they  clearly  shew  the  sense  cf  the  legislature,  as  to  their 
controul, — or  rather  want  of  controul,  over  the  other  funds, 
and  the  college  government? 

This  claim,  in  behalf  of  the  legislature  to  pass  the  acts  in 
question  is  just  as  destitute  of  mafler  of  fact  to   support  it. 


SUPERIOR  COURT,  NEW-HAMPSHIRE.  V35> 

as,  on  the  assumption  of  the  fact,  it  is,  of  just  reasoning, 
and  of  the  authority  of  precedents. 

The  donations  which  constituted  the  college  funds,  the 
charter  informs  us,  were  made  f«r  the  purpose  of  "chris- 
tianizing the  Indians,"  and  they  were  so  applied  for  some 
time:  afterwards  additions  were  made  to  that  object,  and 
to  "  promote  learning  among  the  English,"  and  "  be  a  means 
to  supply  a  great  number  of  churches  with  a  learned,  and 
orthodox  ministry."  It  appears  then,  that  Dartmouth  Col- 
lege was  erected  for  the  "education  and  instruction  of  youth 
of  the  Indian  tribes,  in  this  land,"  in  all  parts  of  learning, 
necessary  for  civilizing  and  christianizing  the  savages;  and 
also  of  English  youth  and  any  others."  What  interest 
then,  had  the  province  of  New-Hampshire,  in  this  institu- 
tion, except,  that  it  was  located  within  its  limits? 

Suppose  the  trustees,  immediately  after  the  founding  of 
the  college,  had  made  an  ordinance  or  law,  (they  had  power 
to  make  such,  as  might  tend  to  the  good  and  wholescmo 
government  of  the  college,  and  to  the  publick  benefit  of  the 
same,  not  excluding  any  person  from  free  and  equal  liberty 
and  advantage  of  education,  on  account  of  his  speculative 
sentiments  in  religion)  that  none  but  subjects  of  this  state, 
should  receive  any  benefit  from  the  institution  ?  Would  not 
this  law  have  been  a  violation  of  the  constitution  of  the  col 
lege  ;  a  perversion  of  its  funds  ;  a  wrong  done  to  the  gener 
ous  contributors  ?  If  so,  with  what  propriety,  can  it  be  said, 
that  the  college  was  created  exclusively  for  the  inhabitants  of 
this  state  ?  That  the  state  are  cestui  que  trusts,  and  have  the 
whole  beneficial  interest  ?  Was  the  christianizing  and  edu- 
cating the  Indians  no  object  in  founding  this  institution  '  I' 
is  believed,  there  were  no  Indians  within  the  limits  of  tin; 
province. 

What  is  the  nature  of  the  interest  vested   in  the  slate 
The  benefit  of  having  a  college  erected  within  its  borders  : 
This  benefit  would  have  been  nearly- or  quite  a>  meat,  i   '" 


l&>  DARTMOUTH  COLLEGE  VS.  WOODWARD. 

location  had  been,  on  the  western,  instead  of  the  eastern, 
bank  of  Connecticut  river.  Let  it  be  admitted,  that  the 
people  of  this  state  derive  a  benefit  from  the  college  ;  what 
title  does  this  confer  ?  Is  there  not  always  a  benefit  accru- 
ing to  the  publick,  from  the  useful  employment  of  the  facul- 
ties, and  property  of  individuals  ?  Here  the  benefit  is  too  ex- 
tensive for  the  purpose  of  the  defendants  argument.  If  the 
legislature  are  guardians  of  any  interest,  it  is  that  of  the  In- 
dians in  this  land,  and  of  the  English  youth.  Who  consti- 
tuted them  guardians  of  all  these? — not  the  authors  of  this  char- 
ity. The  legislature  appointed  themselves  guardians.  The 
truth  is,  the  legal  and  equitable  property  is  in  the  trustees,  to 
be  applied  to  Indians  and  others,  in  their  discretion — in  the 
manner  usual  in  colleges  ; — subject  to  the  controul  and  su- 
perintendence of  the  judicial  courts.  The  donors  might 
have  established  a  college,  for  the  exclusive  benefit  of  this 
province  ;  but  they  did  not.  It  is  sufficient  to  say,  their 
views  were  altogether  different.  And  so  have  been  the 
views  of  ail  men  in  this  state  till  now. 

But  it  is  said  the  annulling  of  the  college  charter  works  no 
injury  to  the  trustees.  It  is  a  sufficient  answer  to  say,  that  it 
hinders  and  prevents  them  from  answering  the  end  of  their 
creation;  the  end  of  their  politicalbeing. — It  takes  from  them 
the  power  of  administering  the  property  entrusted  to  them  by 
the  donors,  whose  representatives  they  are,  according  to  their 
declared  instructions.  The  rights  of  the  trustees  and  visitors 
and  governours  have  been  stated  and  need  not  be  here  repeat- 
ed. Sitting  in  the  chair  of  the  founder,  they  have  all  the 
rights  he  had.  These  rights  are  infringed,and  they  are  hinder- 
ed from  performing  their  duties.  They  are  deprived  of  that 
controul  over  the  property,  and  that  power  of  inspecting  and 
governing  the  institution  which  the  law  has  wisely  said,  re- 
mains with  the  donors.  The  munificent  Dr.  Phillips,  late 
nf  this  place  (Exeter),  gave  all  his  estate  which  was  large,  to 
charitable  uses-     He  liberally  endowed  the  academy  here, 


SUPERIOR  COURT,  NEW-HAMPSHIRE.  137 

which  bears  his  name,  for  the  education  of  youth  ;  bavin"  no 
regard  to  town,  or  state  lines,  in  the  selection  of  objects.  He 
procured  a  charter  from  the  state,  constituting  himself,  and 
his  nominees  trustees,  with  power  of  perpetuating  themselves, 
and  of  selecting  the  objects  of  the  charity,  and  of  governing 
the  institution.  Can  the  legislature  substitute  themselves  in 
the  place  of  these  trustees,  in  relation  to  these  powers  and 
duties  1  Is  there  one  man  who  hears  me  who  believes  that 
#r.  Phillips  would  have  made  the  donation,  had  he  enter- 
tained any  suspicion  of  the  fact  ? 

I  know  it  has  been  objected  to  us,  that  our  doctrine  plac- 
es this  institution  beyond  all  controul ; — takes  away  all  se- 
curity, that  the  beneficial  uses  intended  by  the  contributors 
and  donors,  will  be  enjoyed  ; — is  at  variance  with  the  just 
claims  of  the  state,  to  cherish,  and  protect  the  interests  of 
literature. 

If  these  objections  were  founded  in  fact,  it  would  go  far 
to  shew,  that  what  I  have  stated,  as  the  doctrine  of  Ihe  com- 
mon law,  cannot  be  correct, — or  if  it  be  the  English  common 
law,  it  is  repealed  by  the  revolution,   and  our  free  constitu 
tion,  and  of  course  is  no  longer  binding  here.     But  how  arc 
the  facts.     We  are  so  far  from  denying  the  right  of  the  leg 
islature,  "  to  spread  the    advantages  of  education,   through 
the  various  parts  of  the  state  ; — to   cherish  the    interests  of 
literature  and  the  sciences,  and  all  seminaries  and  publick 
schools  ; — to  encourage  private  and  publick  institutions,  re 
wards  and  immunities,  for  the  promotion  of  the  arts  and  sri 
ences," — that  we  hold  these  to  be  among  its  most  important 
duties  ; — all  of  which  are  violated,  by  the  acts  in  «jtiestion  :- 
These  duties  we  believe  to  have  been  at  all  times,  too  much 
neglected,  and  by  none  more,  than  by  the  legislature  of  1816. 
who  in  words,  acknowledge  their  obligation  and  importance 

The  legislature  may  erect  an  university,  consisting  of  as 
many  colleges  as  they  please  ;  anil  endow  the  institution  and 
govern  it  in  their  own  way:   But  are  not  nf  liberty   to  (  her 
19 


*38  DARTMOUTH  COLLEGE  VS.  WOODWARD. 

ish  the  interests  of  literature,  by  destroying  or  altering  those 
erected,  for  the  purpose,  and  endowed  by  munificent  indi- 
viduals. We  hold,  that  the  power  here  claimed  for,  and  ex- 
ercised by,  the  legislature,  would  effectually  discourage,  and 
prevent  all  charities  of  a  permanent  nature,  founded  by  indi- 
viduals. 

We  are  so  far  from  placing  this  institution  above  controul, 
that  we  claim  for  it  the  protection  of  the  law,  against  what 
we  consider,  as  a  deadly  blow  aimed  at  its  existence,  by  the 
persons  exercising  the  supreme  power  of  the  state.  And 
when,  and  by  whom,  has  it  ever  been  denied,  that  the  in- 
stitution, its  administrators,  property,  and  rights  are  al!  a- 
menable  to  the  law,  and  proper  subjects  of  judicial  enquiry? 
— that  the  judicial  department  of  the  government  which  can 
and  ought  to  protect  its  rights,  and  redress  its  wrongs,  is 
bound  to  enforce  the  performance  of  all  its  duties.  On  this 
subject,  we  have  been  explicit  from  the  beginning. 

An  institution  like  this,  unprotected  by  the  judiciary, 
could  not  exist;  and  uncontrouled  by  the  law,  might  be  a 
nuisance,  instead  of  a  benefit.  The  charter  may  be  repeal- 
ed, for  causes  known  to  the  law.  All  contracts  and  disputes 
between  this  corporate  body  and  others  are  within  the  ju- 
risdiction of  courts (39). 

As  it  respects  the  state,  and  the  interest  the  publickhave 
in  all  literary  establishments,  it  is  for  the  judiciary  to  pro- 
tect these  interests,  and  make  them  effectual  : — to  keep 
this  corporation  within  the  limits,  prescribed  by  the  charter, 
and  the  law  of  the  land.  If  the  trustees  put  a  wrong  con- 
struction on  the  charter,  the  constitution,  or  law  of  the  slate, 
or  make  statutes  repugnant  to  these  ;  the  courts  will  correct 
the  procedure  ;  compel  it  to  act  up  to  the  design  of  its  foun- 
ders, and  to  apply  the  corporate  property  forever,  to  the 
uses  intended  by  them,  and  to  no  other; — to  govern  the  in- 
stitution according  to  its  fundamental  laws — just  as  the  do- 

'30}  I  Wo.  470- 


SUPERIOR  COURT,  NEW-HAMPSHIRE.  139 

nors  themselves  would  have  done — as  far  as  can  be  collect- 
ed from  their  will  expressed  in  the  charter,  and  instruments 
of  donation  :  to  restrain  all  abuses  of  trust  ; — to  protect  eve- 
ry member,  officer  and  student  of  the  seminary  in  the  enjoy- 
ment of  his  rights  and  privi!eges(40). 

And  where  the  trustees  or  governours  have,  as  they  have 
in  this  case,  not  only  the  powers  of  government,  but  the  le- 
gal estate,  and  are  entrusted  with  the  receipt  of  the  rents 
and  profits,  it  is  clear,  that  with  respect  to  these,  they  are 
considered  as  trustees,  and  are  accountable  for  all  breaches 
of  trust. 

Lord  Commissioner  Ashurst  says, (41)  "  There  is  no 
doubt  as  a  general  position,  that  this  court  has  a  controuling 
power  over  all  charitable  institutions.  As  little  doubt  is 
there,  that  this  court  will  grant  an  injunction,  whenever  it  is 
properly  laid  before  them  either  by  positive  or  probable  ev- 
idence, that  the  trustees  are  acting  in  a  manner  inconsistent 
with  the  trust ;  and  are  either  doing,  or  about  to  do,  what 
will  be  detrimental  to  the  charity,"  &c.(42) 

Many  and  various  are  the  occasions,  which  may  call  for 
the  interference  of  the  judicial  courts(43)  :  and  the  exercis 
of  these  judicial  powers,  is  not  deemed  inconsistent  with  the 
visitatorial  power,  which  we  claim  for  the  plaintiffs  : — But  it 
is  not  to  be  carried  so  far,  as  to  interfere,  with  the  discretion- 
ary powers,  confided  by  the  founders  to  the  trustees  : — the 
power  of  selecting  the  particular  persons,  who  are  to  receive 
the  benefit  of  the  charity  ; — of  making  statutes,  and  rules,  not 
inconsistent  with  the  laws  of  the  state  and  of  the  institu- 
tion ; — of  interpreting  and  enforcing  tbrrn  within  the  limita- 
tions before  stated  ; — of  prescribing  the  course  of  educa- 
tion, &c.  &c.(44).  As  to  all  these,  neither  judicial  courts, 
nor  any  other  body  of  men  can,  or  ought,  to  substitute  their 

.  -      !  \V«.  170. 
(41)  i2  V./..  Jr.  4'.}. 

1-iU)  H I  P.  W'nn..1'2(i.- U'lk-fii.u    n     i      '  r.S-l  —  2AtV.  \<Y.  — 2\  ■-. 

Jr.  i'.i.  V  (  . — I  lli-o.f;.  C   \»Y 

Li)  1   Wo    \7>.\    iH  >.  — !   Mac.   iS"    l 

t+   I     J    Vl  Si    IT.     ."•    I  I 


t 


146  DARTMOUTH  COLLEGE  VS.  WOODWARD 

discretion  in  the  place  of  the  donor's  discretion,  or  that  of  his 
visitors  or  trustees ; — for  the  law  presumes,  and  I  think  right- 
ly, in  favour  of  the  latter.  It  says  on  these  subjects  they 
have  the  most  discretion. — Where  the  donors  have  placed 
the  disc  vc! ionary  power,  essentially  necessary  in  conducting 
and  governing  all  charitable  institutions ;  there  it  ought  to  re- 
main, as  long  as  it  is  exercised  fairly,  soundly,  without  par- 
tiality, and  free  from  corruption  (45)  till  some  body  of  men 
shall  be  found,  belter  qualified  for  its  exercise,  and  more  like- 
ly to  fulfil  the  donors  benevolent  intentions.  I  am  very  sure 
this  body  of  men  will  never  be,  any  legislative  assembly,  con- 
stituted like  ours. 

On  the  subject  of  judicial  controul  over  literary  institutions, 
I  need  not  be  more  particular,  or  refer  to  the  cases.  We  ad- 
mit it  in  the  fullest  extent  to  which  it  has  been  carried  by  the 
current  of  the  authorities. 

Respecting  the  legislative  power  over  eleemosynary  cor- 
porations, we  believe  it  to  be  much  the  same,  as  that  over 
private  persons,  and  private  property.  The  charter  cannot 
be  repealed  by  a  legislative  act.  Nor  can  the  legislature 
pass  any  acts  altering  the  charter,  or  respecting  the  internal 
government  or  management  of  the  affairs  of  the  corporation, 
or  in  any  way  interfering  with  its  special  powers,  and  privi- 
leges, without  its  consent.  But  with  the  assent  of  the  trus- 
tees, who  represent  the  founder  and  donors  an  imperfect,  or 
inconvenient  organization,  may  be  remedied  ;  and  such  al- 
terations made  in  the  power  of  visitation,  as  it  may  be  pre- 
sumed the  donors  themselves  would  have  desired.  The  act 
of  this  state  of  1807  granting  a  tract  of  land  to  the  college, 
very  improperly  restrains  the  grantees  from  alienating.  This 
greatly  reduces  the  value  of  the  grant  ;  and  on  application 
of  the  college,  may  be  remedied.  And  generally,  in  the 
case  of  private  corporations,  as  in  the  case  of  private  per- 
sons, special  acts  may  be  passed,  when  the  consent  of  all 
lavfies,  having  an  interest  is.  obtained-. 


SUPERIOR  COURT,  NEW-HAMPSHIRE.  141 

Experience  has  shewn,  that  there  is  no  unwillingness  in 
individuals,  or  private  corporations,  to  apply  for  such  acts. 
It  is  confidently  believed,  that  such  applications  have  been 
too  frequently  made.  How  unfounded  then  is  the  charge, 
that  our  doctrine  places  this  institution  above  all  controul  ? 

We  will  now  consider  the  remaining  objection — that  it 
gives  no  security  for  the  enjoyment  of  the  benefits  intend- 
ed ; — no  security  against  a  total  departure  from  the  charita- 
ble purposes  of  the  donors. 

On  this  ground  we  cheerfully  meet  our  opponents.  If  the 
objection  is  well  founded,  it  will  certainly  have  some  ten- 
dency to  shew,  that  the  law  is  not  quite  so  wise,  as  we  have 
represented  it  to  be.  The  argument  ab  inconvenienti  is  a 
powerful  argument  to  shew  what  tho  law  is. 

One,  or  ten  individuals,  (the  number  is  immaterial)  pro- 
pose to  dedicate  property  enough  to  found  and  endow  a  col- 
lege for  education.  They  fix  on  their  plan.  Obtain  the 
sanction  of  the  supreme  power  of  the  state,  in  which  it  is  to 
be  located  ;   that  is,  they  obtain  a  charter. 

They  themselves  become  incorporated,  as  trustees,  to  dis- 
pense the  charity,  and  govern  the  institution.  The  case 
would  be  the  same,  if,  by  their  consent,  other  persons  should 
be  incorporated  as  trustees. — The  trustees  have  power  to 
perpetuate  themselves.  The  dedication  to  charity  is  irre- 
vocable. The  law  takes  the  institution  under  its  protection, 
and  secures  it  all  its  rights,  and  compels  it  to  perform  all  its 
duties. 

Can  any  better  mode  be  devised  of  continuing,  beyond  the 
limits  assigned  by  the  author  of  nature  to  the  donors'  lives, 
the  same  charitable  mind  and  views  which  was  in  them  .' 
Is  not  this  the  general  sentiment  of  mankind  ? — Are  not  our 
charitable  corporations  perpetuated  in  this  way?  The  very 
liberal  and  highly  respectable  founders  of  the  theological 
institution  at  Andovcr,  provided  a  set.  of  visitors,  with  pom- 
•r  to  perpctualr  themselves  as  (lie  best  mode  of  securing  for- 


142  DARTMOUTH  COLLEGE  VS.  WOODWARD. 

ever  instruction  in  theology,  in  that  way,  they  deemed  the 
most  scriptural  and  correct ; — an  object  with  them  ;  and  one, 
which  our  legislature  have  deemed  every  way  proper(46). 

Dr.  Eleazer  Wheelock  certainly  thought  so.  He  repre- 
sented, that  for  "  many  and  weighty  reasons,"  it  was  expe- 
dient, that  his  friends  should  be  of  the  incorporation  pro- 
posed for  Dartmouth  College  ; — and,  that  as  to  the  trustees 
in  England,  "it  may  be  expected,  that  they  will  appoint  suc- 
cessors in  time  to  come,  who  will  be  of  the  same  spirit  with 
themselves; — whereby  great  good  may,  and  will  accrue, 
many  ways,  to  the  institution,"  &c. 

This  expectation  was  a  reasonable  one,  and  has  received 
the  sanction  of  lord  Loughborough's  powerful  mind(47). 

The  power  of  holding  the  property,  applying  it,  and  in- 
specting and  governing  the  institution,  must  be  lodged  some- 
where. The  parent,  anxious  for  the  welfare  of  his  offspring, 
has  devised  this,  as  the  best  mode  of  effectuating  his  inten- 
tions, in  all  time  to  come.  If  he  has  not  devised  the  best 
mode ; — if,  confiding  the  power  of  filling  vacancies  to  the 
governour  and  council  of  the  state  would  be  more  likely  to 
secure  the  appointment  of  men,  of  the  same  spirit  with  the 
founder;  still  the  founder  has  a  right  to  judge  for  himself, 
and  it  is  not  with  a  very  good  grace,  that  we,  claiming  the 
benefit  of  the  bounty,  should  undertake  to  be  wiser  than  our 
benefactor,  or  quarrel  with  the  terms  of  his  gift. 

It  is  not  my  intention  to  call  in  question  the  fitness  of  the 
legislature  for  the  exercise  of  the  powers  confided  to  them 
by  the  constitution.  But  it  is  my  doctrine,  that  they  have 
no  power  to  change  the  constitution  of  this  seminary  with- 
out its  consent,  or  to  exercise  any  visitatorial  power  over  it. 
Why  should  tbey  have  this  power  ?  Is  it  conferred  by  the 
clause,  which  makes  it  their  duty  to  cherish  the  interest  of 
all  seminaries  of  learning  ?  Would  the  change  of  constitu- 
tion of  this  literary  seminary  for  example,  at  the  pleasure  of 

(46)  See  act  of  27  June  1816,  Sect.  8. 

('17)  See  2  Vez.  Jr.  619,  kc.  Ex  parte  Wrangham. 


SUPERIOR  COURT,  NEW-HAMPSHIRE,  143 

the  legislature  for  the  time  being,  have  a  tendency  to  secure 
the  permanence  of  the  institution  ? — Make  its  immediate  ad- 
ministrators faithful  to  the  donors — above  all  things  desirous 
to  execute  their  will  ? — Would  it  give  security  and  inspire 
confidence,  in  the  officers  and  instructors  of  the  college  ? — 
Would  the  legislature,  or  its  committees,  be  an  useful,  or 
convenient  forum,  for  (he  inspection,  and  controul  of  estab- 
lishments of  this  nature  and  for  settling  their  disputes  ?(48) 
And  above  all  would  individuals,  if  not  suffered  to  conduct 
the  charity  according  to  their  own  judgment  and  consciences, 
and  agreeably  to  the  constitution  they  prescribe,  found  and 
endow  literary  institutions  ? — And  would  publick  bounty 
supply  that  efficiency,  which  the  zeal  and  beneficence  of 
individuals  are  capable  of  giving  to  a  system  of  education  1 

If  there  is  any  reliance  to  be  placed  on  the  opinions  of 
learned  men,  fortified  by  cur  own  experience,  no  body  of 
men  can  be  imagined  every  way  worse  qualified  for  the  ex- 
ercise of  the  powers  now  claimed  for  the  legislature.  Some 
of  our  most  experienced  statesmen,  while  they  tell  113  that 
this  department  is  much  disposed  to  extend  the  sphere  of 
its  activity,  and  draw  all  power  into  its  impetuous  vor- 
tex, represent  it,  from  its  want  of  capacity  for  deliberation, 
— from  passion — and  from  other  causes,  as  exposed  to  the 
intrigues  of  executive  magistrates  ; — its  policy  as  fluctuat- 
ing(49)  ; — its  sudden  changes,  and  interferences  in  cases 
affecting  personal  rights,  becoming  jobs  in  the  hands  of  en- 
terprising and  influential  speculators(50).  And  why  should 
there  not  be  persons  ready  to  speculate  in  college  property, 
and  college  offices,  as  well  as  in  other  property  and  in  other 
offices  ?  AVe  have  been  assured  too^l)  that  the  legislature 
of  one  of  our  most  respectable  states,  "  have  deliberately  in 
terfered  with  cases  notoriously  within  the  jurisdiction  of  the 

(48)  4  1).  &  E.  243.— 2  Vez.  Jr.  019.  Ex  parto  Wranghnm. 
(4'J)  Mr.  Madison,  Federalist  No.  <1S. 
'(50)  Federalist  No.  ii 
(5\S  foop.  Just  430 


144  DARTMOUTH  COLLEGE  VS.  WOODWARD 

established  courts  ;  and  that  some  of  the  cases,  in  which  this 
interference  has  taken  place,  were  irresistibly  ludicrous."* 

It  is  not  necessary  for  my  present  purpose  that  I  should 
adopt  the  senlimen's  quoted  in  their  fullest  extent. — But  af- 
ter having  made  these  quotations  it  is  but  justice  to  our  leg- 
islature, to  declare  my  belief  that  in  exercising  their  powers, 
they  have  been  in  general,  as  correct  as  their  neighbours. 
The  evil  lies  in  the  nature  of  the  body,  and  its  total  unfitness 
for  this  work  ; — and  its  liability  to  be  drawn  in,  by  interested 
individuals  to  act  out  of  its  proper  sphere. 

Jt  has  been  often  said  that  the  legislature  have  no  motive 
to  divert  this  charity  from  the  uses  declared.  I  agree  that 
it  is  and  always  will  be  the  true  interest  of  the  state  to  ab- 
stain from  all  injustice — all  measures  which  shall  divert  char- 
ities, to  improper  purposes.  But  let  the  power  to  interfere 
in  respect  to  private  charities  be  conceded  and  where  is  our 
security  against  abuses  ?  Is  it  uncandid  to  say  that  the  time 
may  arrive,  when  those  that  may  be  called  to  guide  our 
councils,  and  to  compose  our  legislature,  may  not  be  so  dis 
interested,  and  patriotic,  as  our  present  rulers.  It  is  possi 
ble  that  they  may  be  prevailed  on,  even  at  the  hazard  of  los- 
ing their  offices,  (if  there  should  be  any  danger  of  that)  to 
convert  this  institution  into  an  instrument  of  party,  and 
change  its  trustees  and  officers  to  gratify  private  pique,  or 
to  raise  an  influence  favourable  to  them  or  their  friends.  It 
is  certainly  within  the  limits  of  possibility,  (I  do  not  say  that 
it  is  probable)  that  this  administration  of  college  revenues, 
and  college  affairs,  by  committees  of  the  legislature,  might 
prove  in  the  end  as  hurtful  to  the  state  as  to  the  college, — 
b}r  corrupting  the  members,  when  less  virtuous  than  at  pres- 
ent. There  is  every  reason  to  believe,  that  the  spoils  of  the 
monasteries  in  another  country  was  attended  with  this  per- 
nicious effect. 

*  Reference  is  made  to  an  act  wliich  the  compiler  of  the  index  to  the  laws  was 
ashamed  to  insert 


SUPERIOR  COURT,  NTAV-HAMFSHIRE,  145 

We  hare  shewn  how  abuses  of  trust  may  be  corrected, 
when  the  revenues  and  government  are  in  the  hands  of  the 
corporation:  and,  I  think,  have  shewn  that  in  the  exercise 
of  the  powers  now  claimed  for  the  legislature,  there  may  be 
abuses.  Let  our  opponents  shew  how  these  can  be  cor- 
rected.— Who  shall  visit  the  legislature  1  Quis  custodiet  ip- 
so* cusfodes?  Phillip  the  Second  of  Spain,  husband  of  Queen 
Mary,  had  a  mind  to  be  appointed  Regent  of  England,  (all  for 
the  good  of  the  English  nation  no  doubt)  during  the  minority 
of  the  child  of  which  the  queen  was  supposed  to  be  pregnant ; 
— and  offered  to  parliament  security,  to  resign  the  regency, 
on  the  child's  coming  of  age.  It  was  nearly  carried  in  the 
house  of  peers,  when  lord  Paget  stood  up  and  said,  "Pray 
my  lords  who  shall  sue  the  king's  bond  should  he  happen  not 
to  resign." 

If  I  have  succeeded  in  any  degree  in  my  attempts  to 
shew,  that  Dartmouth  College  is  to  be  regarded  as  a  private 
corporation, — its  property  and  franchises  private, — subject 
to  the  same  judicial  and  legislative  controul,as  individuals  and 
their  property,  and  to  no  other  ; — and  that  the  circumstance 
of  the  appropriation  of  the  property  to  the  use  of  a  college, 
founded  and  governed  like  this,  no  way  alters  the  case  ;  it 
will  not  be  a  difficult  task  to  shew,  that  the  acts  in  question 
violate  the  constitution  of  the  state. 

As  it  respects  the  charitable  fund,  the  acts  take  it  from 
the  holders  without  their  consent.  The  2d  article  of  the  bill 
of  rights  gave  the  plaintiffs  "  the  right  of  acquiring,  possess- 
ing and  protecting"  this  fund,  and  the  law  gave  them  the 
power,  and  made  it  their  duty  to  apply  it  to  such  uses,  as 
the  donors  had  declared.  The  12th  article  declares  that 
'*  every  member  of  the  community  (and  this  embraces 
corporate  bodies  as  well  as  individuals)  "  has  a  right  to 
be  protected  by  it  in  the  enjoyment  of  his  property." 
What  is  the  nature  of  the  protection  afforded  by  these  legis- 
lative acts  ?  It  has  been  said,  indeed,  that  by  the  same  12tli 
20 


146  DARTMOUTH  tOLLDGE  VS.  WOODWARD. 

art.  it  is  implied,  that  the  property  of  an  individual  may  be 
taken  from  him  and  applied  to  publick  uses,  without  his  con- 
sent. By  the  constitution  of  the  United  States  (amendment 
V.)  it  is  declared  that  "  no  private  property  shall  be  taken 
for  publick  use  without  just  compensation."  I  admit  that 
when  the  publick  safety,  or  even  convenience  requires  the 
lands  of  the  plaintiffs  for  sites  for  forts,  arsenals,  for  roads,  ca- 
nals, Sec.  on  payment  of  a  fair  equivalent,  they  maybe  tak- 
en, in  the  same  manner  as  lands  of  individuals.  Do  the 
defendant's  counsel  mean  to  be  understood  as  contending, 
that  this  clause  in  the  constitution  authorizes  the  state  to 
take  private  property  of  individuals  against  their  will  for  any 
other  purposes  ? — or  that  the  acts  in  question  can  be  justi- 
fied under  this  article  1 

As  it  respects  the  corporate  franchises,  I  contend  that 
these  come  under  the  denomination  of  property.  The  plain- 
tiffs have  an  incorporeal  property  in  their  membership, 
franchises,  and  privileges  ;  These  have  been  wrested  from 
them,  and  have  been  bestowed  upon  others.  If  this  act  of 
violence  had  been  committed  by  an  individual,  the  plaintiffs 
by  the  14th  article  of  the  bill  of  rights,  would  have  been  en- 
titled "  to  their  certain  remedy  by  having  recourse  to  the  laws 
— to  obtain  right  and  justice,  conformably  to  the  laws."  But 
here  the  injury  is  done  by  the  legislature,  under  the  form  of 
legislative  acts,  and  under  colour  of  law  :  But  this  violation 
of  the  plaintiffs  rights  is  not  the  less  an  injury  on  that  ac- 
count. 

The  fifteenth  article  declares,  that  "  no  subject  shall  be 
despoiled  or  deprived  of  his  property,  immunities,  or  privi- 
leges but  by  the  judgment  of  his  peers,  or  the  law  of  the 
land  :" — which  surely  means  in  this  place  the  same  law  which 
governs  subjects  in  general :  and  not  a  statute  or  law  which 
itself  inflicts  the  injury,  and  does  the  act  forbidden.  Such 
a  doctrine  seems  absurd.  To  be  deprived  of  property  by 
the  "judgment  of  one's  peers,  or  the  law  of  the  land,"  is  the 
iame  thing  as  to  be  deprived  by  due  process  of  law. 


SUPERIOR  COURT,  NEW-HAMPSHIRE.  147 

It  is  admitted,  that  the  plaintiffs,  both  as  a  body  politick, 
and  as  individual  members,  like  all  other  corporations,  and 
members,  are  liable  to  be  deprived  of  their  corporate  prop- 
erty, and  franchises,  for  causes  known  to  the  law.  If  these 
acts  of  the  legislature,  are  attempted  to  be  justified  on  the 
ground  of  forfeiture  incurred  by  the  plaintiffs  ; — still,  they 
violate  the  constitution;  because  the  forfeiture  without 
which  there  can  be  no  deprivation  has  not  been  ascertain- 
ed in  some  "due  course  of  law"(i2).  Our  statutes  of  6 
February  1789,  and  19  June  1794,(o3)  are  predicated  on  the 
idea,  that  grants  of  land,  the  privilege  of  erecting  bridg- 
es, canals,  locks,  Sec.  are  compacts  between  the  state, 
and  the  grantees.  It  provides  that  disputes  between  them 
concerning  the  performance  of  the  conditions,  shall  be 
determined  by  the  superior  court  as  a  court  of  equity. 
These  acts  declare  that  "the  liberty  and  safely  of  the 
subject  require,  that  re-grants  of  the  same  property  and 
privileges  should  not  be  made  upon  mere  suggestions,  with- 
out the  intervention  of  proofs,  and  trial  by  jury,  accord- 
ing to  the  constitution  and  laws,  to  ascertain  the  perform- 
ance or  non-performance  of  such  conditions." — The  parties 
affected  are  to  be  summoned,  and  the  trial  to  be  by  jury — 
This  language,  as  dignified  as  it  is  correct,  becomes  a  legis- 
lature.— It  was  worthy  of  all  imitation.  Instead  of  the  state 
asserting  by  act  her  title  to  what  might,  or  might  not,  be  her 
own,  according  to  tiie  fact  of  performance,  or  non-perform- 
ance of  conditions  by  her  citizens,  she  goes  into  her  own 
cour's,  on  a  level  with  (lie  meanest  of  her  subjects  ; — ad- 
mitting, a::ci  correctly  admitting,  that  in  privileges,  a;id  the 
right  to  impartial  trial,  they  are  onale\cl  with  lier(.'/4). 

in  the  case  at  bar  the  acts  are  a  legislative  sentence  of  de- 
.<■ .'.  accompanied  by  a  writ  oi   s-cixin,  in    favour  of  the 

of  tin"  "(.'""noil  o|   !'•  vr,'.iiii"«ifXi'\v-Vnrk(,J.Ml  M     rli 

!:'''-../•'.  .1:1  :i.-t  cftli"  '<--  nil'!_\  I  •  ;u  iii'n.jj  llic  giv.nl  lu  .Mm  i'llili  o! 
•Ii<:  "  solr  l\£iit  Si:i(l  a<i\  niitrLT"  of  Piak'ui?  .Hlfl  r»i)|>loyilt£  tlir  '.  :<m 
,  ..:.  {vi-. 

if.  I.:.   -,  ivi  is:;. ...  ••,--  -" 


148  DARTMOUTH  COLLEGE  VS.  WOODWARD. 

university,  to  put  the  party  into  possession  of  the  proper- 
ty ; — and  a  bill  of  pains  and  penalties,  to  put  the  trusteei 
out  of  their  offices. 

If  the  state  suffered  an  injury  by  the  plaintiffs' claiming 
to  exercise  their  corporate  franchises ;  or  by  their  violating 
their  trust,  the  law  was  open,  equally  to  the  state,  as  to  iti 
citizens.  If  this  corporation  is  so  constituted,  and  it'swion- 
archical  tendencies  are  such,  as  to  disseminate  poison  among 
the  citizens  of  our  republick, — if  this  institution  be  the 
monster,  we  have  heard  of,  which  devours  all  charities,  and 
converts  even  charity  herself  into  stone,  the  sooner  the 
charter  is  repealed  the  better. 

I  do  not  admit  that  complaints  of  this  kind,  (if  any  such 
have  been  made)  are  any  thing  more  than  evidence  that  a 
"  controversy"  existed  between  the  state,  and  this  learned 
seminary,  concerning  "rights"  and  "property"  claimed  by 
the  one,  and  denied  by  the  other  :  and  does  not  the  20th  ar- 
ticle of  the  bill  of  rights  "  secure"  to  the  smaller  body,  in 
this  controversy,  "the  right  to  a  trial  by  jury  ?"  Does  this 
article  only  embrace  individuals  and  private  corporations, 
leaving  the  state  the  more  powerful  party,  the  right  of  try- 
ing their  own  causes,  of  obtaining  redress  for  all  the  injuries 
done  them,  not  "  in  due  course  of  lawj"  but  by  their  own 
act,  finding  at  once  both  the  fact  and  the  law.  I  hope  the 
time  will  never  come  when  such  doctrines  will  be  popular. 
If  they  ever  receive  any  countenance,  in  our  government, 
from  any  of  its  great  departments,  it  will  behove  us  in  fu- 
ture, to  speak  more  respectfully  of  other  governments,  ev- 
en of  that  of  Turkey,  than  we  have  been  hitherto  accustom- 
ed to  do.  The  plaintiffs  have  been  deprived  of  what  they 
claim  as  their  rights, — have  they  had  any  trial  ? 

Our  constitution  declares(55)  that  "it  is  essential  to  the 
preservation  of  the  rights  of  every  individual,  his  property, 
and  character,  that  there  be  an   impartial  interpretation  of 

f  55;  Art.  35 


SUPERIOR  COURT,  NEW-HAMPSHIRE.  149 

the  laws  and  impartial  administration  of  justice  : — and  that 
"  it  is  the  right  of  every  citizen  to  be  tried,"  and  to  have 
his  causes  and  controversies  tried,  "by  judges  as  impartial 
as  the  lot  of  humanity  will  admit."  While  I  entertain  the 
highest  respect  for  the  legislature,  as  a  legislature,  I  have 
no  hesitation  in  saying,  that  as  judges  they  are  as  bad  as  the 
lot  of  humanity  can  possibly  admit; — that  private  property, 
and  character  would  be  altogether  unsafe  in  such  hands. 

If  there  is  any  thing  established  by  our  constitution,  it  is 
that  the  legislative  department  of  our  government  should 
abstain  from  the  exercise  of  judicial  power,  as  every  way 
totally  incompetent  io  the  task.  It  is  not  merely  the  37th. 
article  of  the  bill  of  rights  which  prohibits  it, — the  whole 
constitution  forbids  it.  Remove  the  restraint  on  the  legisla- 
ture to  exercise  judicial  power,  and  your  constitution  is  not 
worth  what  the  parchraenton  which  it  is  enrolled  cost(56). 
Legislative  bodies  are  much  inclined  to  exercise  judicial 
power;  but  in  a  very  summary  way,  they  do  not  try,  they 
pass  sentence.  They  are  always  prompt  and  ready  for  that. 
In  this  case  they  refused  the  plaintiffs  any  opportunity  of 
being  heard  io  vindicate  their  charter,  against  unfounded 
charges  publickly  made  against  it,  and  from  the  highest  au- 
thority in  the  stale. 

The  acts  in  question  violate  the  23d  article  of  our  bill  of 
rights  ;  because  they  take  away  vested  rights, — acquired 
under  existing  laws  ; — take  from  one  set  of  men,  and  give  to 
another.  This  article  says,  "no  retrospective  law  3  shall 
be  made,  for  the  decision  of  civil  causes."  These  acts 
were  made  for  the  decision  of  this  cause.  They  decide  the 
plaintiffs'  rights,  and  if  valid,  they  are  conclusive  against 
one  party  and  in  favour  of  the  other.  Lay  tliem  aside,  and 
where  is  the  defence  ? 

Hut  acts  of  the  legislature  have  been  mentioned,  as  equal- 
ly affecting  private  property,  and  private    corporations,  with 

(56)  So:  1  Wheat.  329.— 3  Dall.  .388  —  2  Crm.cb.   270.7.-11  Mass.    U-y- 
l(h2. —C.,!!   r.i  !',■,,(.■..,  ,„;„'■•  ;.,  .',,-  !lo;i,0  uf  Lords  ',  lot".  I  )  ['■  •'   v 


150  DARTMOUTH  COLLEGE  VS.  WOODWARD 

those  in  question  ; — such  as  acts  restraining  banks  from  is- 
suing notes  payable  at  any  other  place  than  the  bank  from 
which  they  issued,  Sec.  Sec.  I  do  not  feel  myself  called 
upon,  io  vindicate  the  constitutionality  of  any  act  of  the  leg- 
islature, on  this  occasion. — If  unconstitutional  acts  have 
been  passed,  and  have  been  submitted  to,  it  may  be  some 
apology,  but  no  defence  of  the  acts  in  question.  But,  for 
my  own  part,  lam  not  disposed  to  condemn  general  acts  of 
legislation,  laying  down  a  rule  for  all  banks,  as  well  as  for  all 
individuals,  as  to  the  form  of  notes  or  bills.  Individuals  are 
restrained  from  banking,  without  an  act  of  incorporation, 
and  from  issuing  and  circulating  notes,  in  imitation  of  bank 
notes,  bearing  the  impression  of  plates,  &c.(5T).  And  why 
may  not  the  legislature,  by  general  laws,  applicable  to  all 
banks,  prescribe  the  form  of  bank  bills,  or  establish  a  rule  of 
damages  ?  I  do  not  know  that  our  legislature  have,  in  any 
instance,  deprived  banks  in  this  stale  of  rights  conferred  on 
them. — If  they  have,  all  such  acts  passed  without  the  con- 
sent of  the  bank,  whether  submitted  to,  or  not,  are  uncon- 
stitutional and  void.  The  acts  referred  to,  it  is  believed, 
were  prospective  only  (58). 

I  cannot  give  my  assent  to  the  doctrine,  which  seems  to 
be  contended  for  by  the  defendant's  counsel; — that  the  leg- 
islature have  a  right  to  alter  the  charter  of  a  private  corpo- 
ration, whenever  the  publick  good — the  welfare  of  the  com- 
munity, in  their  opinion  requires  it : — to  deprive  it  of  its 
rights,  for  the  good  of  the  many.  The  principle  is  broad 
enough  for  this  case.     But  I  deny  the  principle. 

It  was  the  ground  taken  in  the  British  parliament,  in  favour 
of  Hie  bill  of  pains  and  penalties,  respecting  the  south-sea 
company,  about  a  century  ago.  The  act  took  from  the 
company  their  property, — imprisoned  some  of  the  directors, 
and  compelled  them  to  pay  certain  sums,  out  of  their  private 
funds. — Could  our  legislature  so  deal  with  our  banks  which 

refuse  payment,  and  thereby  defraud  the  publick. 

(:>:)  x.  n.  i  "«-s,rc<i.  1315,  tj.  S2. 

35     Si  .  S  Mass.  He;.,  id; 


SUPERIOR  COURT,  NEW-HAMPSHIRE.  151 

If  the  principle  now  contended  for  be  a  sound  one,  it  is 
not  easy  to  see  the  use  of  a  written  constitution,  defining 
and  professing  to  establish  private  rights  ; — and  then  leaving 
them  at  the  mercy  of  the  legislature. — Will  they  be  at  a  loss 
to  find  good  reason  for  passing  any  bill? — the  corporation  has 
abused  its  privileges  ; — its  constitution,  emanated  from  roy- 
alty ; — it  is  necessary  to  enlarge  and  improve  its  charter, 
and  render  the  government  of  the  college  more  dependent 
on  those,  who  are  honoured  with  the  confidence  of  the  peo- 
ple, and  of  course,  well  qualified  to  preside  over  their  literary 
as  well  as  civil  concerns.  The  charter  of  Massachusetts  was 
taken  away  because  it  was  not  a  good  one ; — and  its  powers 
had  been  abused. — These  acts  (it  may  be  said)  were  not  in- 
tended "to  destroy,  but  to  reform." — So  said  Sir  Robert 
Sawyer  on  the  quo  warranto  against  the  city  of  London, — 
"to  prune  off  those  exorbitances  of  power  which  the  city 
magistrates  had  assumed."  It  has  been  asked,  shall  the  good 
of  the  many  be  sacrificed  to  the  few?  Has  not  the  state 
as  deep  an  interest  in  the  prosperity  of  the  college  as  the 
trustees?  In  the  case  of  the  city  of  London,  it  was  asked,  is 
a  corporation  once  constituted,  forever  out  of  the  reach  of  the 
common  law? — so  here, — is  this  royal  charier  beyond  the 
controul  of  the  sovereign  power  of  the  state,  vested  in  the 
legislature, — bound  to  promote  the  publick  good  ? 

We  admit  that  our  government  "was  instituted  for  the 
general  good, — the  common  benefit," — the  prosperity  and 
happiness  of  the  people.  But  was  it  not  also  instituted  for 
the  protection  and  security  of  every  individual,  whether  na- 
tural or  politick,  his  person  and  his  property  ?  Without  the 
protection  and  security  of  these,  how  is  the  publick  good  tc 
be  promoted  ? 

The  framers  of  our  constitution,  and  the  people  who 
ratified  it,  seem  to  have  entertained  the  opinion,  that  the 
people  in  their  capacity  of  sovereign  should  declare  some 
rights,   fix   some   principles,   and  place    them    beyond    the 


to2  DARTMOUTH  COLLEGE  VS.  WOODWARD. 

controul  of  any  and  every  department  of  the  govern- 
ment.— Now  the  doctrine  contended  for,  removes  all  bar- 
riers out  of  the  way  of  the  legislature.  If  they  have  the 
right  to  pass  all  laws  publick  and  private,  general  and  spe- 
cial, which  the  publick  good  requires,  what  power  has  the 
judiciary  to  declare  any  law  unconstitutional  ?  Would  not 
this  be  making  the  legislature  subordinate  to  the  judiciary  ? 
A  doctrine  which  I  totally  deny.  In  the  same  sense,  that 
the  publick  good  requires,  the  new  modelling  of  Dartmouth 
College,  it  may  require  all  or  any  part  of  the  private  proper- 
ty of  any  bank  or  individual.  No  arguments  have  been  ad- 
dressed to  the  court  shewing,  wherein  the  publick  good  re- 
quired these  acts. — They  stand  on  the  sic  volo,  sic  jubeo, 
stet  pro  ratione  voluntas. 

No  one  can  justly  charge  me  with  want  of  respect  for 
British  precedents.  I  consider  the  respect  shewn  by  par- 
liament, in  modern  times,  to  private  rights,  and  the  extreme 
caution  with  which  they  are  guarded  by  that  assembly,  as 
entitled  to  the  highest  praise,  and  every  way  worthy  of  our 
imitation. — There  has  been,  and  still  is,  much  ground  of 
complaint  with  us  on  this  head.  But  still  parliament  may 
pass  many  acts,  which  our  legislature  are  prohibited  from 
passing.  It  can  pass  ex  post  facto  laws,  in  the  worst  sense 
of  the  term. — Bills  of  attainder — as  often  perhaps,  condemn- 
ing the  innocent  as  the  guilty,  and  always  attended  with  con- 
fiscation of  property,  are  not  forbidden.  Is  it  to  be  presum- 
ed that  the  parliaments  passing  such  iniquitous  bills,  did  not 
contain  on  their  rolls  the  names  of  many  great  and  good  men  ? 
— and  that  the  advocates  for  these  special  acts  had  nothing 
to  say  about  the  publick  good  ?  Such  acts  are  always  de- 
fended on  the  ground  that  the  publick  safety — a  much 
higher  consideration  than  the  publick  good — demands  the 
enactment.  It  is  in  the  exercise  of  the  same  authority,  that 
parliament  can  dissolve  all  corporations.  So  it  can  declare 
authoritatively  what  is,  and  what  shall  be  truth,  and  what 


SUPERIOR  COURT,  NEW-HAMPSHIRE.  153 

heresy  in  matters  of  religion  ;  and  can,  if  it  pleases,  provide 
for  the  purification  of  religion  by  burning  all  heretics.  So 
that  Sir  Edward  Coke,  is  abundantly  justified  in  saying, 
that  parliament  has  despotick  power. 

Precedents  drawn  from  the  English  parliament  in  trou- 
blesome times,  or  any  other  assembly  of  legislators 
or  judges  in  such  times,  are  about  as  good  authority  here, 
at  this  day,  as  the  decisions  in  the  reign  of  Richard  the  sec- 
ond, where  the  judges  were  capitally  condemned  for  the 
judgments  they  gave.  The  condemnations  and  the  judg- 
ments were  pretty  much  alike. 

The  defendant's  counsel  seem  aware  that  the  right  claim- 
ed for  the  legislature,  to  take  away  the  properly  and  privi- 
leges of  private  corporations  is  liable  to  be  abused  ;  and 
therefore  agree,  that  it  ought  never  to  be  exercised  but  for 
the  strongest  and  most  important  reasons.  This  restriction 
promises  something  on  paper  :  but  what  is  it's  practical 
utility  ?  Who  shall  judge  of  the  weight  and  importance  of 
ihe  reasons? — Not  the  judiciary  surely; — and  not  the  party 
to  be  affected  by  the  measure.  If  the  legislature  judge  amiss 
there  is  no  remedy. 

The  mischief  here  arises  from  the  principle  which  concedes 
to  the  legislature  a  power  altogether  indefinite,  or  in  other 
words,  despotick.  Is  there  a  government  in  the  world  which 
would  hesitate  to  acknowledge  the  obligation  of  such  a  prin- 
ciple ? 

lint  extreme  caution  in  dealing  with  these  plaintiffs  seems 
riot  to  be  required,  because  the  interest  of  the  legislature  and 
;he  trustees  are  said  to  be  the  same.  Bui  I  hope  it  has  been 
satisfactorily  shewn,  that  this  is  by  no  means  the  case. — 
Have  the  legislature  of  New-Hampshire  no  inducement  to 
apply  the  fund-;  raised  from  contributions  from  without  as 
well  as  within  the  state,  (it  would  be  invidious  to  s.tate  the 
pi uportions  accruing    from    each  source)  exclusively  to  our 


154  DARTMOUTH  COLLEGE     VS.  WOODWARD 

own  citizens?  Awl  if  they  should  do  so,  who  shall  correct 
the  procedure  ? 

At  present  they  have  contented  themselves  with  taking 
the  property  from  the  men  to  whom  the  donors  entrusted 
it,  and  giving  it  to  a  corporate  body  created  by  them- 
selves,adding  to  the  uses  (I  suppose  on  account  of  the  great- 
ness of  the  funds)  other  colleges,  an  institute,  &c  They 
have  not  diverted  the  funds  from  literature.  But  what  they 
have  done,  is  an  assertion  of  the  right  to  do  what  they  please 
with  them.  I  am  by  no  means  convinced  from  any  thing  which 
I  have  heard,  that  the  dependence  of  the  legislature  on  the 
people  would  be  a  sufficient  check  to  an  entire  misapplica- 
tion of  the  funds.  What  prevents  the  people,  for  example, 
from  preferring  the  institute  proposed,  to  our  old  fashioned 
colleges?  They  may,  possibly,  like  it  the  better  for  not 
knowing  precisely  what  it  is  ;  and  yet  their  ideas  on  this 
subject  may  be  as  distinct  as  those  of  the  majority  of  the 
legislature. 

I  know  that  courts  of  chancery  have  a  controuling  power 
over  all  charitable  institutions.  But  our  legislature  seem  to 
have  no  disposition  to  provide  for  the  erection  of  such  courts: 
and  it  seems  to  be  intimated  that,  till  we-bave  such,  the  leg- 
islature themselves  may  rightly  exercise  chancery  powers. 
I  admit  they  are  as  well  qualified  for  chancellors  as  for  com- 
mon law  judges*. 

We  have  heard  if  gravely  stated,  as  a  reason  for  the  in- 
terference of  the  legislature  in  this  case,  that  literary  institu- 
tions are  subject  to  decay  ;  that  the  charter  of  our  college 
was  granted  under  the  authority  of  the  British  king,  and  a?, 
it  emanated  from  royalty,  so  it  contained,  a?  was  natural; 
principles  congenial  to  monarchy  :-one  of  these  is, the  power 
of  *elf  perpetuation.     This  last  cal  principle/* 

•■o  hostile  to  the  Lpicit  and  genius  oi'  a  free  government,  has 
been,  ic  i=  believed,  pretty    ca;  preserved  in   all  the 

t hartcra  off]  •  jr:      :d  by  our  legislature 


SUPERIOR  COURT,  NEW-HAMPSHIRE.  i55 

it  is  candid  to  presume  (hey  were  not  aware  of  its  anti-re- 
publican tendency. 

If  Dartmouth  College  has  suffered  in  its  constitution  from 
"  decny"  it  is  certainly  not  the  effect  of  old  age  ;  and  as  lit- 
tle to  be  ascribed  to  the  corrupting  inJlaeuce  of  ease,  leisure 
or  wealth. 

From  the  same  quarter  it  has  been  intimated  that  much 
good  would  result  to  this  seminary  and  to  the  publick  from 
governmental  checks  on  i(s  officers  and  affairs.  1  am  not  a 
convert  to  these  opinions.  As  there  is  no  royal  road  to  science 
so  there  is  no  such  republican  road.  The  best  road  is  that 
which  has  been  marked  out  and  trodden  by  learned  men  ; 
those  who  are  themselves  proficients  in  science,  not  sciolists 
and  mere  pretenders  to  learning.  And  the  best  reliance  for 
funds  is  on  munificent  individuals,  men  who  have  wealth  to 
bestow  and  hearts  to  bestow  it; — to  found  colleges,  and  real- 
ly to  improve  the  literary  seminaries  we  have. 

It  is  the  duty  of  the  legislature  by  all  fitting  ways  and  means 
to  encourage  such,  men  to  give  ;  and  the  most  effectual  will  be 
honestly  and  3acredly  to  respect  the  rights,  privileges  and  im- 
munities of  the  seminaries  they  endow.  The  state  should  do 
all  she  can;  but  her  best  gifts  to  her  colleges  will  always  be, 
not  a  code  of  laws  but  lands  or  monies.  For  myself,  I  do  not 
wish  to  see  the  time  when  the  government  of  this  or  any  other 
literary  institution  (always  excepting  perhaps  the  institute) 
■shall  be  closelv  connected  with  (he  government  of  the  state. 
Changes  in  the  latter,  if  not  desirable,  arc  alwavs  to  be 
expected;  permanence  in  the  former  is  every  way  im- 
portant. There  is  besides  something  in  political  men 
generally  speaking,  which  unfits  them  for  the  management 
of  an  academical  institution,  or  to  be  useful  fellow-workers 
with  instructors  of  youth.  I  do  not  say  (hat  such  alliance  is 
as  bad  as  that  between  church  and  stile  ;  but  it  is  somewhat 
like  it.  J  had  rather  sec  government  stand  neuter,  content 
•  self  with  seeing  fair  play  be!  ween  the  friend*    and  patron* 


15t>  DARTMOUTH  COLLEGE  VS.  WOODWARD 

of  learning  and  its  foes,  than  to  take  upon  itself  to  prescribe 
systems  of  education,  elect  the  professors  and  officers  and 
regulate  the  interinur  of  colleges  as  its  caprice  may  direct. 

It  only  remains  to  consider  whether  the  legislative  acts  in 
question  violate  the  constitution  of  the  United  States.  Is 
the  charter  a  contract  within  the  meaning  of  that  constitu- 
tion 1  If  it  be,  I  trust,  I  need  not  add  any  thing  to  the  obser- 
vations which  have  been  made,  shewing  that  its  obligation 
has  been  impaired. 

It  has  been  my  endeavour  to  shew  that  when  property  is 
given  to  a  charity  of  this  kind,  the  owners,  as  founders  or 
donors  retain  the  power  of  inspecting  its  application,  of  pro- 
tecting the  interest  of  the  foundation,  and  of  correcting  all 
abuses  in  the  management  of  the  property  and  in  the  gov- 
ernment of  the  institution.  When  a  charter  or  an  act  of 
incorporation  like  the  present  is  granted,  this  power  is  neith- 
er lost  nor  transferred  to  the  king,  the  state,  or  to  the  pub- 
lick, but,  by  the  founders  consent  and  at  their  request  is  vest- 
ed in  the  trustees  :  Thenceforth  they,  as  a  body  corporate 
hold  the  property,  as  the  perpetual  representatives  of  the 
donors  ;-are  perpetual  visitors  and  governours  of  the  charity. 
This  is  the  will  of  the  donors  : — and  the  supreme  power- 
granting  the  charter  sanctions  the  transfer,  and  stipulates  by 
implication  with  the  donors  and  expressly  with  the  trustees, 
that  they  shall  forever  as  a  body  politick  hold  and  enjoy  the 
property,  and  the  powers  and  franchises  contained  in  the 
charter.  The  charter  is  evidence,  and  conclusive  evidence 
of  the  compact,  its  terms  and  conditions.  The  most  im- 
portant of  these  are,  that  the  body  politick  shall  have  the 
very  necessary  power  of  electing  members  in  the  room 
of  such  as  go  off; — the  right  of  acquiring  and  holding  pro- 
perly for  the  use  of  the  institution  : — the  power  to  make 
statutes  for  the  government  of  the  institution,  and  gen- 
erally to  exercise  all  the  powers,  and  to  have  all  the 
privileges  usually  belonging  to  the  government  of  a  college. 


SUPERIOR  COURT,  NEW-HAMPSHIRE.  157 

Here  seems  to  be  every  thing  requisite  to  form  a  compact. 
The  kins;  is  one  party,  the  donors  in  the  first  instance,  and 
then  the  trustees  as  their  acknowledged  substitutes  or  rep- 
resentatives are  the  other  party.  There  are  stipulations, 
express  and  implied,  in  favour  of  each  party. — Dr.  Eleazer 
Wheelock  acted  for  the  donors,  (or  for  himself,  if  it  should 
be  thought  the  property  contributed  was  then  in  him.)  Is 
not  this  Dr.  E.  W  heelock's  language  ?  I  propose  to  give 
the  funds  collected  here,  and  which  have  been  hitherto  em- 
ployed in  support  of  the  Indian  charity  school, — those  now 
in  the  hands  of  the  trustees  in  England,  who  are  in  fact  my 
trustees, — those  offered,  and  procured  here,  with  more  im- 
mediate reference  to  the  college  to  be  located  in  the  west 
em  part  of  New-Hampshire,  procured  at  my  solicitation  ; — 
I  propose  with  these  funds  to  found  a  college  ; — certain  ot 
my  friends  to  be  appointed  trustees, — and  the  corporation  to 
have  certain  powers  and  privileges,  (the  same  which  were 
conferred  by  the  charter)  and  the  uses  and  purposes  of  the 
institution  the  same  as  those  specified.  The  king  accepts 
the  proposal,  and  thereby  secures  to  his  subjects  (not  mere 
]y  those  inhabiting  the  province  of  New-Hampshire)  the 
benefits  arising  from  such  an  institution  in  such  a  place  rand 
these  benefits  his  courts  will  take  care  shall  be  forever  enjoyed. 
The  trustees  after  accepting  the  charter  are  bound  to  ans- 
wer the  end  of  their  creation  ; — and  apply  the  funds,  and 
such  as  they  may  procure,  forever  to  the  uses  designated 
by  the  donors,  and  declared  in  the  charter. 

This  was  a  good   contract  on   both    sides.      The    original 
donors  have  no  doubt  already  received  their  reward.     The 
trustees,  till  this  unlooked  for  intrusion  by  the  state  were  er, 
joying  the    satisfaction  of  seeing  the  good  work   prosper  in 
their  hands  ; — and    the  state   and   its   citizens    were  reaping 
the  advantages   resulting    frorn   the  diffusion   of  knowledge 
The  charter  and   its  privileges    were   purchased  with  some 
thing  b-jtt^r  than  motrv. ■— 1<    '<':>-  »mi    a   monopolv  even   ot 


I £8  DARTMOUTH  COLLEGE  VS.  WOODWARD. 

charity  ;  for  the  slate,  its  rulers,  and  all  charitable  individu- 
als may  still  foster  learning  by  endowing  colleges  and  free 
schools.  Does  not  then  every  principle  of  good  faith  re- 
quire the  fulfilment  of  the  contract  on  both  sides  ? 

It  is  too  late  for  the  king  to  quarrel  with  the  terms. — He 
never  did.  No  complaint  was  made  till  1816.  What  claim 
have  the  state  now  to  the  funds  or  the  controul  over  the  in- 
stitution, except  that  they  prefer  the  absolute  property  to 
the  benefit  secured  by  the  charter  ? — And  what  sort  M'  title 
is  this,  in  a  court,  of  law  or  equity  ? — And  what  should  we 
think  of  an  individual  who  should  assert  it  ?  The  privileg- 
es granted  were  such,  and  such  only,  as  the  experience  of 
centuries  had  demonstrated  to  be  proper  and  safe. 

Was  the  king  deceived  in  this  grant  ?  Who  practised  the 
deception  ;  and  in  what  does  it  consist  ? 

Does  this  compact  bear  any  resemblance  to  that  which 
may  be  supposed  in  the  formation  of  a  county,  town,  &c.  ? 
Here,  private  properly  is  given  for  certain  purposes,  and  on 
certain  terms  and  conditions  ;  and  in  return,  certain  franchi- 
SC3  are  bestowed. 

We  have  seen  that  our  law  regards  grants  of  corporate 
privileges  for  the  holding  and  managing  property  from  which 
the  pubiick  derive  a  great  benefit  as  a  compact(/i9). 

It  is  difficult  to  imagine  a  reason,  why  compacts  of  this 
sort  should  not  be  entitled  to  the  protection  of  the  consti- 
tution of  the  United  States.  A  state  may  contract(60),  and 
experience  shews,  she  may  pass  acts  violating  her  own  sol- 
emn contracts,  as  well  :  s  make  laws  impairing  contracts  to 
which  she  is  not  a  party. 

I  know  it  has  been  said,  that  the  annulling  of  this  charter 
deprives  the  plaintiffs  of  no  valuable  estate  or  interest.  The 
whole  beneficial  use  was  in  the  state.  In  this  view  the 
charter  is  a  mere  appropriation  of  the  funds  by  the  king,  not 

(59)  Sec  arts  of  GtliTeby.  1789,  and  19lh  Juno  1794,  N.  H.  Laws,  edn. 
1S15,  p.  67.  7S. — mite,  p. I  IT, — a:id  see  alsoX.  II.  Turnpike  acts — Bank 
acts,  kc. 

(60)  6  Cornell  137. 


SUPERIOR  COURT,  NEW-HAMPSHlRE.  169 

by  the  donors, — to  the  use  of  a  college,  which  he  was  pleas- 
ed to  call  Dartmouth  College  ; — the  charter  was  the  sole 
act  of  the  king ; — there  was  but  one  party ; — Ihe  king,  con- 
sequently may  change  it,  though  drawn  up  it}  solemn  form, 
as  men  change  their  last  wills  though  in  the  name  of  God 
amen.— The  donors  parted  with  all  their  property  ;  and  Dr. 
Eleazer  Wbeelock  (from  his  great  love,  I  suppose,  for  mon- 
archy,) gave  all  to  his  majesty,who  was  then  graciously  pleas- 
ed of  his  own  special  grace,  certain  knowledge  and  mere  mo- 
tion, with  these  funds  to  constitute  and  endow  a  college  ; — 
and  for  the  present  place  it  under  the  administration  of  cer- 
tain persons,  as  his  agents — publick  agents — to  manage  this 
publick property. — His  successors,  who  surely  inherit  all 
the  love  of  learning  and  all  the  honesty  and  justice  of  the 
crown,  have  only  done  what  his  majesty  might  have  done, 
removed  one  set  of  publick  agents  and  provided  for  the  ap- 
pointment of  another. — Either  this  account,  of  the  nature 
of  this  property,  or  ours  must,  I  think,  be  the  correct  one. 
Every  one  who  reads  the  charter  can  determine. 

If  the  state  have  no  legal  or  equitable  estate  In  these 
funds  and  in  this  charter,  its  franchises  and  privileges,  then 
this  objection  entirely  falls  lo  the  ground.  The  truth  is  the 
trustees,  as  a  body  politick,  are  the  legal  and  equitable  own- 
ers of  the  property  and  of  the  franchises  conferred  by  the 
charter : — as  long  as  they  hold  and  apply  the  one,  and  use 
the  other  according  to  law,  their  property  is  sacred  and 
ought  to  be  protected  from  legislative,  as  well  a>  every  oth- 
er violation. 

That  the  plaintiffs  hold  the  funds  for  others  (certainly,  if 
(he  state  be  not  those  others)  no  ftay  affects  Ihe  plaintiffs' 
right  to  claim  the  benefit  of  the  compact  formed  by  the 
charter,  unimpaired. 

I  do  not  think  that  authorities  are  needed  on  t h is  part  oi 
>>ur  case.     In  Fletcher  vs,  IVi  !>'*;!     i?  was  decided,  that   ? 


160  DAftTMOtJTH  COLLEGE  VS.  WOODWARt). 

grant  of  land  by  a  slate  is  a  contract  and  protected  by  the 
constitution  of  the  United  Slates. 

The  legislature  of  New -Hampshire  have,  in  effect,  deter- 
mined that  the.  grant  of  the  privilege  to  make  a  canal,  &c.  is 
a  compact (62). 

In  New-Jersey  vs.  WiIson(63),  it  was  decided  that  where 
the  state  granted  an  easement — the  exemption  of  certain 
lands  from  taxation — the  grant  could  not  be  repealed  by  the 
legislature. 

In  Terret  vs.  Taylor (64),  it  was  held,  that  a  legislative 
grant  was  not  revocable,  and  that  property  held  by  certain 
persons  for  the  use  of  the  church  could  not  be  divested  by 
an  act  of  the  legislature  of  the  state,  in  which  the  lands  were 
situate. 

In  Pawlet  vs.  Clarke(65),  it  was  held,  that  where  lands 
were  granted  by  the  state  to  the  town  in  which  they  were 
situate  "for  the  use  and  support  of  religious  worship"  the 
legislature  could  not  by  an  after  act  appropriate  the  same 
lands  "for  the  use  of  the  schools  of  such  towns." 

No  authorities  have  been  cited  which  militate  with  the 
principles  recognized  and  established  by  these  cases  nor 
any  arguments  adduced,  which  seem  to  require  a  particular 
consideration. 

Though  I  do  not  think  the  arguments  of  the  defendant's 
counsel  sound,  yet  I  have  too  much  respect  for  those  who 
urged  them  to  adopt  the  language  of  lord  Coke,  in  the  case 
of  Sutton's  hospitaI(66), — "all  the  arguments  which  have 
"been  made  against  this  honourable  work  of  chariti/,  are 
"  hatched  out  of  mere  conceit  and  new  invention,  without 
"any  ground  of  law,  and  such  which  have  any  colour  were 
utterly  mistaken" — not  founded  in  fact. 

I  am  sensible  much  might  be  added  to  illustrate  and  en- 
force this  and  the  former  heads.     But  as  the  court  are  fully 

(62)  See  ante,  y.  147. 

(63)  7  Crunch  164, 
(6i)  y  Crunch  43. 
(05)  9  Crunch  295 
(6C)  10  Co.  2'.'. 


'  SUPERIOR  COURT,  NEW-HAMPSHIRE.  161 

apprized  of  the  general  principles  on  which  we  contend  the 
acts  of  the  legislature  in  question  are  impeached,  I  forbear 
further  detail. 

In  advocating  this  cause,  I  have  not  for  a  moment  been  re- 
lieved from  a  most  oppressive  sense  of  its  importance, — to 
the  literary  institution  whose  rights  have  been  prostrated, 
and  to  all  our  charitable  establishments  for  the  promotion  of 
religion  or  literature:  the  cause  of  one  is  the  cause  of  all. 
I  might  have  declined  the  duty  of  an  advocate  :  but  I  have 
felt  myself  impelled  by  a  solemn  sense  of  duty,-— the  duty 
which  every  citizen  owes  his  country,  to  make  every  exertion 
in  my  power  to  maintain  and  defend  the  con.'fitution  against 
all  violations,  from  what  quarter  soever  they  may  proceed. 
The  plaintiff's  have  discharged  a  necessary  duty  on  their 
part, — that  of  bringing  this  cause  where  relief  can  be  obtained. 
Nothing  remains,  but  to  expect  that  impartial  judgment 
which  the  law  is  bound  to  pronounce  on  the  facts  of  the 
case. 


Mr.  Bartlett, — However  arduous  may  be  the  duties 
which  devolve  upon  the  defendants'  counsel  in  this  case,  I 
rejoice  that  we  have  not  here  to  encounter  all  those  diffi- 
culties which,  from  the  publick  excitement,  appear  to  have 
burthened  the  publick  mind. 

The  hopes,  fears  and  interests  of  those,  who  partake  of 
the  feelings  of  the  parties  in  this  action,  may  present  many 
difficulties  to  their  coming  to  a  proper  decision  ;  but  none 
of  those  obstacles  lie  in  the  path  of  the  court.— Many  cir- 
cumstances at  this  moment  call  us  to  rejoice,  that  the  breath 
of  faction,  whatever  tempests  it  may  raise  upon  the  surface, 
can  never  disturb  the  serenity  of  the  atmosphere  that  sur- 
rounds their  elevation — that  whatever  may  be  others'  feel- 
ings  and  passions,  our  system  of  government  has  given  us  a 


16*2  DARTMOUTH  COLLEGE  VS.  WOODWARD. 

tribunal,  which  in  all  judicial  proceedings  may  look  with 
perfect  unconcern  upon  "  this  noisy  babel  earth,  nor  feel 
its  giddy  whirl." 

From  the  course  that  has  been  adopted  by  the  defend- 
ant in  this  action,  it  is  perfectly  apparent  he  has  no  objec- 
tion that  the  plaintiffs  should  investigate,  however  informal- 
ly they  may  come  to  it,  every  part  of  the  ground  upon 
which  he  stands,  for  had  he  felt  any  want  of  confidence,  he 
could,  without  any  lack  of  courtesy,  have  stopped  them  in 
this  prosecution  at  its  very  threshold.  That  the  name  o£ 
a  corporation  may  be  altered  with,  or  without  their  consent, 
and  by  a  power  much  inferior  to  our  legislature,  would  not 
be  contested  even  by  the  most  undoubting  disciple  of  the 
modern  doctrine  of  corporate  supremacy(l). — And  when 
the  name  is  thus  altered,  it  is  indisputably  settled  that  the 
corporation  must  sue  by  its  new  name  (2). 

Should  the  plaintiffs,  on  a  plea  in  abatement,  have  amend- 
ed their  writ  and  taken  the  unwelcome  name  of  the  amended 
charter,  even  then,  without  a  further  extension  of  courtesy 
by  the  defendant,  their  action  must  have  failed  ; — for  what- 
ever be  the  final  decision  on  the  validity  of  the  law,  the  de- 
fendant, detaining  the  articles  sued  for  as  an  officer  in  the 
discharge  of  a  publick  duty  under  that  law,  could  not  be 
found  guilty  of  a  conversion  to  his  own  use  in  this  form  of 
action  (3). 

[The  Chief  Justice  here  observed  that  although  inclined 
to  the  opinion  that  this  was  not  the  proper  form  of  action, 
yet  he  understood  that  point  to  be  waived  by  the  parties.] 

The  defendant,  sir-)  does  most  cheerfully  waive  this  and 
every  exception  in  point  of  form,  with  a  desire  to  acceler- 
ate the  plaintiffs'  progress  to  the  temple  of  justice,  believ- 
ing they  will  the   sooner  find  there  the  inscription  to  them- 

(1)3  Rur.  1780.— 3  Term  Rep.  240. 

(2)  1  Kos.  Sc  Pul.  40.— 3  Salk.  102.— 1   L.  Ray.  30.     Rac.    Abr.  Corp.    E, 
Com.  Dig  Franch.  F.  1—1  Rol.  512. 

(3)  2  Mass.  Rep. 


SUPERIOR  COURT,  NEW-HAMPSHIRE.  163 

selves  of  mene  lekel  upon  its  walls The  plaintiffs,  howev- 
er, having  been  thus  careless  in  their  process,  it  may  per- 
haps excite  less  surprise,  should  they  be  found  sometimes 
inaccurate  in  their  principlss,  and  not  always  infallible  in 
the  application  of  them. 

The  question  is  understood  to  be  upon  the  validity  of  the 
acts  of  the  legislature  of  New-Hampshire  of  June  27,  1816, 
entitled  "  An  act  to  amend  the  charter  and  enlarge  and  im- 
prove the  corporation  of  Dartmouth  College" (4) — and  of 
Dec.  18,  1816,  entitled  "an  act  in  addition  to  and  in 
amendment  of  an  act  entitled  an  act  to  amend  the  charter 
and  enlarge  and  improve  the  corporation  of  Dartmouth  Col- 
lege"  (5). 

The  defendant  does  not  introduce  to  the  present  discus- 
sions the  additional  act  of  Dec.  26,  1816(6),  as  he  does  not 
rest  his  defence  in  this  suit  upon  any  provision  of  that  act. 

The  imperfect  manner  in  which  our  remarks  may  be  of- 
fered in  answer  to  the  plaintiffs'  learned  counsel,  it  is  hoped, 
will  find  a  sufficient  apology  in  the  disadvantageous  circum- 
stances under  which  we  appear. — A.  recurrence  to  books, 
to  principles,  to  reason,  could  give  no  very  certain  indica- 
tions of  the  objections  to  be  raised  against  these  acts  of  the 
Legislature.  Those  objections,  as  we  apprehend,  resting 
principally  in  the  subtle  ingenuity  of  the  learned  counsel 
Could  not,  by  our  feeble  efforts,  have  been  anticipated. — And 
since  (hey  were  but  yesterday  communicated  to  the  court 
with  the  splendor  of  learning  and  depth  of  logick  common  to 
those  distinguished  advocates,  a  few  hours  only  have  been 
left  us  to  consider  even  cursorily  the  wide  extent  of  the  ar- 
gument. 

f  cannot  say  that  f  follow  precisely  the  order  or  form  of 
their  objections  to  these   legislative  arts,   but   believe    tin' 


(i)  X     H.  Laws,  Tu 

:,(■  Si-: 

•-..  i  s  i  r, .  | 

,.  is 

(.-,)    X.  li.    I/.US,   S<>\ 

'.  S   s< 

,.   1S1  ),    n 

.,-•». 

(6)  X.  H.  U.<  ,,  :v,- 

.-.  S  ,= 

.  1  sir,,  r, 

-  '.'  i 

164  DARTMOUTH  COLLEGE  VS.  WOODWARD. 

their  arguments  were  directed  to  the  support  of  the  follow- 
ing general   positions — 

That  the.  legislative  acts  in  question  are  contrary  to  the 
ftrijiciples  of  natural  justice. 

That  corporations  of  this  nature  are  independent  of 
legislative  control. 

That  the  provisions  of  these  acts  violate  the  constitutions 
of  New-Hampshire  and  of  the  United  States. 

This  court  unquestionably  have  the  power,  and  cases  may 
exist  in  which  it  shall  become  their  duty,  to  declare  acts 
of  the  legislature  void ;  but  this  power  or  duty  by  no 
means  demand  of  them  an  indiscriminate  warfare  against  all 
Legislative  acts  which  may  or  may  not  be  of  doubtful  expe- 
diency.— It  is  a  power  evidently  not  to  be  exercised  for 
slight  reasons, — "  Admitting  such  a  power  in  the  judiciary," 
says  judge  Thompson,  "it  ought  to  be  exercised  with  great 
caution  and  circumspection" (7).  •' As  the  authority  to  de- 
clare an  act  of  the  legislature  void"  (says  judge  Judell)  "  is 
of  a  delicate  and  awful  nature,  the  court  will  never  resort  to 
that  authority  but  in  a  clear  and  urgent  case"(8).  By  an 
eminent  jurist  of  this  state  it.  has  been  observed  of  this  pow- 
er, that  "it  is  a  gem  which  would  tarnish  by  too  frequent 
handling  !" 

Whatever  opinion  the  justices  of  this  court  in  the  charac- 
ter of  legislators  might  have  entertained  of  the  policy  or  ex- 
pediency of  these  acts,  sitting  as  a  judicial  tribunal,  their  on- 
ly enquiry  can  be  whether  the  legislature,  had  power  to  pass 
such  acts,  and  not  as  to  the  wisdom  of  the  exercise  of  it. — 
Though  were  it  proper  here  to  enter  upon  such  enquiry,  I 
have  no  apprehension  that  the  legislature  would  suffer  by 
the  investigation.  Notwithstanding  the  severity  of  remark 
which  one  of  the  learned  counsel  has  been  pleased  to  in- 
dulge upon  that  part  of  our  system,  we   have   no  doubt  il 


{7)  9  Join,-.  Rep.  5i 
(8)  3  Dal.  H op.  399 


G4 


SUPERIOR  COURT,  NEW-HAMPSHIRE.  165 

will  continue  to  be  held  in  high  consideration.  And  it 
is  believed  that  the  court  will  not  refuse  a  proper  respect  to 
an  opinion  expressed  in  the  form  of  a  law  by  the  other  two 
branches  of  government — a  law,  which  to  become  such, 
must  after  due  deliberation  have  passed  the  house  of  repre- 
sentatives, have  passed  the  senate,  and  been  approved  by 
the  chief  executive  magistrate  of  the  state.  "  With  such 
a  weight  of  prima  facie  evidence  in  favor  of  these  laws" 
(said  judge  Thompson  in  Livingston  vs.  Van  Ingen)  "I 
should  not  have  the  boldness  to  pronounce  them  void,  with- 
out the  most  clear, satisfactory  and  unanswerable  reasons  (9). 
"And  in  such  case"  (said  Ch.  Jus.  Kent.)  "the  court 
should  be  able  to  vindicate  itself  by  the  soundest  and  most 
demonstrable  arguments"(10).  Such  authorities  need  not 
the  support  even  of  Ch.  Jus.  Parsons'  opinion,  as  expressed 
in  the  case  of  Kendall  vs.  Kingston(ll).  Nor  need  we  insist 
upon  the  principle  any  further  than  is  already  adopted  by 
this  court  in  their  rule  of  decision  jiistitia fiat,  and  the  max- 
im of  their  province  dicere  non  dare  legem. 

I.  The  plaintiffs'  first  position  that  the  acts  in  question 
are  contrary  to  the  principles  of  natural  justice  is  certain- 
ly a  very  broad  and  indefinite  one. 

"  The  ideas  of  natural  justice'''  ('says  a  learned  jndge(12; 
are  regulated  by  no  fixed  standard  ;  the  ablest  and  the  pur- 
est men  have  differed  upon  the  subject,  and  all  that  the 
coun  could  properly  say,  in  such  an  event,  would  be  thai 
the  legislature  (possessed  of  an  equal  right  of  opinion)  had 
passed  an  act,  which  in  the  opinion  of  the  judges,  was  in- 
consistent with  the  abstract  principles  of  national  justice. "- 
"The  court"  (says  the  judge)  "cannot  pronounce  it  to  be 
void,  merely  because  it  is  in  their  opinion  contrary  to  the 
principles  of  natural  justice."  And  (he  strong  language  of 
sir  William  Blackstone  h  that  if  the   legislature   saw    (it   to 

'J  i  'J  Johns.  Rep.  564. 
(lo)  Ibid. 
'Hi   .  Mass.  \t<  |>.  5S4. 

1  Dal     K'P.    i'.J'J. 


166  DARTMOUTH  COLLEGE  TS.  WOODWARD. 

enact  a  law  manifestly  contrary  to  the  principles  of  natural 
justice  he  knew  of  no  power  that  could  declare  it  void"(13). 
But  if  the  court  find  in  these  acts  any  thing  contrary  to  the 
principles  of  natural  justice,  the  defendant  will  disdain  to 
protect  himself  even  by  the  unequivocal  authorities  above 
cifed. 

He  asks  no  aid  for  injustice — no  protection  by  acts  of 
the  legislature,  unless  they  are  equitable  in  principles  as 
well  as  legal  in  their  operation.  As  an  investigation,  how- 
ever, of  the  expediency  and  propriety  of  the  legislature's 
passing  the  particular  acts  in  question  would  open  a  wide 
field  for  discussion,  which  would  at  once  manifest  the  irrela- 
vancy  of  such  an  enquiry  before  a  judicial  tribunal,  we  shall 
forbear  to  dwell  upon,  or  even  to  notice  the  facts  and  circum- 
stances which  not  only  justified  but  demanded  the  passing  of 
the  acts  in  question  ;  and  shall  consider  that  point  to  be  set- 
tled by  the  acts  themselves,  unless  upon  the  face  of  them 
something  appear  to  rebut  that  strong  prima  facie  evidence. 

In  support  of  their  first  position,  the  plaintiff's  counsel 
say  that  these  acts  of  the  legislature  destroy  the  old,  create 
a  new  corporation  and  transfer  to  it  the  property  of  the 
former. 

Here  we  protest  against  imputing  to  the  acts  of  the  legis- 
lature any  consequences  which  result  from  the  plaintiffs'  op- 
position to  and  violation  of  those  acts.  If  by  opposing  they 
have  forfeited  any  office  or  place  they  held  by  the  law,  let 
not  the  law  be  made  accountable  for  the  effect  of  their  trans- 
gressions. As  well  might  the  tenants  of  our  State  Prison  re- 
proach the  statute  book  for  the  consequences  of  their  crimes. 

We  appeal  to  the  statutes  themselves  to  negative  this  de- 
claration of  the  plaintiff  in  support  of  their  first  position. 

The  title  and  preamble  of  the  acts  certainly  do  not  ex- 
hibit proofs  of  any  such  design  as  the  plaintiffs  impute  to 
then) ;  but  to  enlarge  and    improve    the  charter  of   this  in 

n."0  1  131k.  Com    91. 


SUPERIOR  COURT,  NEW-HAMPSHIRE  167 

iiitution ;  and  in  the  opinion  of  the  legislature,  who  in  this 
case  can  have  no  other  interest  than  that  of  the  publick,  to 
render  it  more  extensively  useful.  The  object  here  announc- 
ed i3  certainly  a  laudable  one,  and  no  doubt,  we  shall  be  able 
to  shew,  is  within  the  power  and  duty  of  the  legislature. 
The  first  section  of  the  act  of  June  27  changes  the  name 
from  College  to  University, — increases  the  number  of  trus- 
tees from  twelve  to  twentj'-one ;  their  authority  is  more  de 
tailed,  but  not  extended  to  any  object  beyond  that  of  the 
original  design  of  the  institution,  nor  are  the  funds  diverted 
to  any  new  purpose.  By  the  second  section  a  board  of 
overseers  is  constituted.  The  third,  fourth,  aud  filth  section 
prescribe  some  additional  duties  to  the  offices  of  president 
Sec.  The  sixth  section  provides  for  the  appointment  of 
the  additional  trustees  and  for  filling  the  vacancies,  until  a 
meeting  of  the  board,  by  the  governour  and  council.  The 
other  parts  of  this  and  (he  two  subsequent  sections  extend 
merely  to  the  meetings,  inspection  of  the  records,  oath  of 
allegiance  and  freedom  of  religious  opinions.  The  first 
section  of  the  act  of  Dec.  18.  provides  for  calling  a  meeting 
of  the  trustees  in  consequence  of  a  quorum  not  having  as- 
sembled at  the  annual  meeting  and  for  filling  of  vacancies 
which  had  happened  since  that  time.  The  second  section 
provides  that  nine  may  form  a  quorum  for  business  &c. 
and  the  third  enacts?  that  the  trustees  shall  make  and  sub- 
scribe the  oath  of  office. 

In  which  of  these  sections  then,  have  the  plaintiffs  dis- 
covered all  this  mischief?  Is  it  that  which  abolishes  the  oath 
of  allegiance  to  the  king  of  Great-Britain,  and  substitutes 
an  oath  to  support  the  constitution  of  the  United  States  ? 
or  the  section  which,  conformably  to  that  constitution,  guar- 
antees freedom  of  religious  opinion  ?  If  any  of  their  num- 
ber were  born  subjects  of  the  king  of  Great-Britain,  and 
adhere  to  the  doctrine  that  a  subject  cannot  expatriate  him- 
self. ?Vn  a^ay  they  insist  at  least  in  argument,  that  the  prin- 


160  DARTMOUTH  COLLEGE  VS.  WOODWARD. 

ciples  of  natural  justice  are  violated  in  compelling  them  to 
swear  against  the  allegiance  to  which  nature  had  bound 
them. 

How  have  these  acts  destroyed  the  corporation  ?  Is  it 
destroyed  by  the  change  of  name  ?  What  hecatombs  then 
arc  annually  sacrificed  by  legislative  acts,  passed  for  the  al- 
teration of  names. — But  that  the  corporation  with  a  new 
name  remains  the  same  in  all  its  rights,  duties  and  privileges 
is  most  incontrovertibly  settled  in  the  case  of  Colchester  vs. 
Seaber(14),  and  Rex  vs.  Pasmore(15).  In  the  one  case 
where  the  corporation  by  a  new  name  sued  on  a  bond  given 
to  the  corporation  in  its  old  name,  lord  Mansfield  in  deliv- 
ering the  opinion  of  the  court  says,  "it  is  argued  that  this 
new  corporation  is  totally  distinct  from  the  old  one  ;  but 
there  is  no  authority, — no  dictum  for  it."  The  same 
is  decided  in  Miller  vs.  Spatiman(16)  when  that  learned  re- 
porter has  this  marginal  note  :  "  A  corporation  does  not 
lose  its  franchises  by  a  change  of  its  name."'  The  same  is 
decided  in  the  Mayor  and  Burgesses  of  Scarborough  vs. 
Butler(ir),  Knight  &  al.  vs.  Corporation  of  Wells(18),  as 
also  in  the  authorities  before  referred  to  on  this  point  con- 
firmed by  the  whole  record  of  judicial  decisions. 

Has  Iht:  addition  to  the  number  of  corporators  abolished 
the  corporation,  or  in  the  language  of  the  plaintiffs  "  confis- 
cated their  property?"  As  this  point  must  be  more  partic- 
ularly noticed  in  our  consideration  of  the  private  rights 
claimed  by  iheplaiutiA's  under  their  constitutional  objections, 
we  shall  leave  ii.  for  the  present  upon  the  opinion  of  the 
court  cited  from  the  3  Term  Rep.  241 — which  supports 
this  power  as  exercised  by  the  Crown  alone,  and  that  too 
in  a  case  where  the  corporators  had  personal  interest  in  the 

pi)  .i  Hi:r.  1870. 

(l.i)  o  Term  Hi- p.  240. 

(10-)  I  H:iun<l.  ;3i4, 

nr)  :;  i.t-v.  23:— s 

,    Lutv     H'5! 


SUPERIOR  COURT,  NEW-HAMPSHIRE.  169 

corporate  property.  Lord  Kenyon  observed  "  by  the  new 
charter,  the  king  did  not  consider  the  old  corporation  dis- 
solved to  all  purposes,  but  he  granted  those  rights  to  a  new 
set  of  men,  and  superadded  such  other  powers  as  he  deem- 
ed necessary,"  to  which  justice  Ashurst  adds  "  as  to 
there  being  here  a  dissent  of  a  majority  of  the  old  members 
I  lay  no  stress  upon  it."  And  as  though  this  case  had  been 
before  him,  he  observes  "  here  the  members  of  the  old  cor- 
poration have  ho  injury  or  injustice  to  complain  of,  for  they 
are  all  included  in  the  new  charter  of  incorporation,  and  if 
any  of  them  do  not  become  members  of  the  new  corporation 
but  refuse  to  accept,  it  is  their  own  fault. — But  at  any  rate, 
whether  they  refuse  or  accept  it  does  not  affect  the  right  of 
the  Crown."  In  the  case  of  Colchester  vs.  Seaber  before 
cited,  when  it  was  urged  that  the  new  charter  had  created 
a  distinct  corporation  from  the  old  one,  lord  Mansfield 
said,  that  "  without  an  express  authority  so  strong  as  not  to 
be  gotten  over  with,  we  ought  not  to  determine  a  case  so 
much  against  reason."  In  this  case  it  is  apparent  there 
was  no  intention  of  the  legislature  to  create  a  new  corpora- 
tion or  to  destroy  the  old  one — and  we  apprehend  no  point 
can  be  settled  by  decided  cases  unless  this  is,  that  the  old 
corporation  is  not  destroyed  or  a  new  one  created  by  the 
change  of  name  or  addition  to  the  number  of  corporators. — 
It  of  course  becomes  unnecessary  here  to  follow  the  plaint- 
iffs' counsel  in  the  great  latitude  of  remark  upon  the  conse- 
quences of  these  acts,  predicated  upon  the  assumption  that 
they  dissolve  the  old  and  create  a  new  independent  corpo- 
ration.— An  assumption  unsupported  by  fact  or  law. 

II.  But,  say  the  plaintiffs,  corporations  of  this  nature 
are  independent  of  legislative  controul. — And  any  interfer- 
ence, however  harmless  in  itself  is  illegal. 

This  has  been  urged  by  a  sacredness  in  the  constitution 
and  character  of  corporations,  and   the   unfitness   of  legisla- 


ITU  DARTMOUTH  COLLEGE  VS.  WOODWARD 

tures,  by  their  weakness  and  wickedness  to  approach  them. 
Let  us  a  moment  look  at  the  nature  of  corporations,  and 
oflegislative  powers  with  reference  to  them  and  the  general 
practice  upon  this  subject.  What  is  the  charm  or  magick  in 
the  word  corporation,  that  all  other  moral  and  civil  liabilities 
and  duties  should  be  merged  in  the  privileges  of  its  mem- 
bers ?  Does  it  result  from  the  form  or  solemnity  of  their  or- 
igin ?  Speaking  of  the  duties  of  individuals  as  members  of 
civil  societies,  Kyd  observes(19)  that  from  the  establishment 
of  civil  society  and  political  government  collective  bodies  of 
men  "  become  subject  to  common  burthens  and  common 
dutie?,  assume  a  known  character  and  description  and  become 
objects  of  political  regulation-  "  At  their  first  introduction 
they  were  little  more  than  an  improvement  on  the  commu- 
nities which  had  grown  up  imperceptibly  without  any  posi- 
tive institutions,  and  for  a  considerable  period  the  shade 
which  separated  the  one  from  the  other  was  a  touch  so  del- 
icate as  to  require  the  most  minute  attention,  and  the  most 
discerning  eye  to  distinguish(20)."  "  As  no  particular  form 
of  words  or  grant  is  necessary,  so  no  particular  privileges 
are  conferred  in  the  creation  of  a  corporation  by  the  mere 
act  of  making  it  such,  unless  embraced  in  the  nature  and  ob- 
ject of  the  institutional)."  Even  without  any  ceremony 
or  form  of  words  creating  them  such,  the  people  of  any  re- 
ligious denomination,  although  a  minority  in  a  town  corpo- 
ration, are  themselves  a  body  corporate  for  certain  purposes 
as  was  decided  by  one  of  the  plaintiff's  counsel  while  upon 
the  bench  of  our  supreme  court(22).  The  union  of  the  sev- 
eral circumstances  in  which  a  corporation  resembles  other 
communities  seems  to  constitute  its  very  essence ;  and  its  po- 
litical rights  are  more  or  less  extensive  according  to  the  de- 
sign of  iis  institution (23).     "  A  corporation  has  been  called 

(19)  1  Kvd  on  Corp. 

(*>)  Ibid'2. 

(21)  Ibid. 

(22)  Haven  vs.  Rochester Strafford  Supr.  Ju.  Co.  Sept.  T.  1814 

(23)  1  Kydoa  Corp.  18. 


SLPEUIOK   <Ul -HI,  K£W-HAMF3HlKfc  171 

a  franchise,  the  propriety  of  which  appellaiion  depends  on 
the  more  or  lessextensive  meaning  in  which  the  word  "fran- 
chise" is  used  ;  for  this,  wilh  several  other  appellations  have 
been  given  to  corporations,  which  unless  particularly  ex- 
plained are  apt  to  bewilder  and  mislead  the  i:nderstanding("24). 
lc  In  a  more  appropriate  sense  the  word  franchise  means  a 
royal  privilege  in  the  hands  offi  subject  by  which  he  either 
receives  some  profit  or  has  the  exclusive  exercise  of  some 
right.  In  this  sense  a  corporation  cannot  be  called  a 
franchise(25).  The  mere  fact  of  being  a  corporation  does 
not  seem  to  give  its  members  any  supremacy  over  civil  gov- 
ernment ;  then  does  such  privilege  result  from  the  design  of 
these  associations? 

Although  it  is  believed  no  corporation  secures  to  its  mem- 
bers such  powers  as  are  contended  for,  still  it  will  be  fonnd 
that  the  extent  of  their  rights  and  privileges  are  very  mate- 
rially affected  by  the  design  of  the  institution.  As  we  find 
some  corporations  are  granted  to  individuals  for  their  person- 
al interest  and  emolument — These,  although  sometimes  grant- 
ed gratuitously  with  a  view  to  some  publick  advantage  also 
to  be  derived,  but  are  usually  established  in  consideration  of 
some  bonus  or  fee  paid  by  the  petitioners.  Such  are  banks, 
insurance  companies,  turnpike  roads  and  eanal  companies, 
&c  In  these,  individuals  hold  property  or  stock  in  shares, 
have  in  them  an  estate  of  inheritance  and  are  benefitted  by 
certain  tolls,  interest  or  income. 

Other  corporations  we  may  observe,  which  are  establish 
ed  principally  for  publick  purposes,  but  in  which  individu- 
als as  members  may  have  a  beneficial  interest,  but  no  estate 
of  inheritance.      Such  are  the  incorporations  of  school   dis- 
tricts, parishes,  towns,  cities  and  counties,  where  as  members 
or  inhabitants  they  may  have   corporate    property  or  privi 
leges,  such  as    benefits  from    the  corporate  fund-,  rights  <> 
common,  &r. 
a)  ibid  n. 


1 72      DARTMOUTH  COLLEGE  VS.  WOODWARD. 

In  another  division  may  be  included  those  corporations 
for  the  appropriation  of  alms  lo  purposes  of  a  private  na- 
ture ;  as  to  the  poor  of  a  particular  parish,  &c.  The  in- 
terest exists  here  in  individuals,  but  usually  not  in  the  cor- 
porators who  hold  it  in  trust  for  those  to  whom  it  is  ap- 
pointed. 

In  a  still  more  comprehensive  class,  may  be  embraced 
those  corporations  which  are  purely  of  a  publick  nature. 
The  commonwealth  may  name  individuals  as  corporators  to 
perpetuate  a  corporate  succession,  the  better  to  carry  into 
effect  objects  of  publick  importance,  and  with  no  design  to 
grant  emoluments,  or  exclusive  personal  privileges  to  the 
individuals.  If  individuals  acquire  by  such  publick  acts  any 
personal  advantage  it  must  like  other  privileges  incidental 
to  publick  laws  yield  to  such  modification  as  their  principal 
design  requires.  Such  are  the  universities  in  England, 
and  institutions  of  a  similar  nature  in  this  country.  They 
are  of  a  civil  nature  as  they  directly  affect  the  welfare  and 
prosperity  of  government,  and  as  was  observed  in  the  argu- 
ment of  Phillips  vs.  Bury  (26),  fatal  would  be  the  consequen- 
ces if  they  were  to  be  exempted  from  legislative  controul, 
"  the  great  part  of  the  nation  would  not  be  subject  to  the 
rules  and  government  of  the  common  law,  for  the  rich  men 
were  got  into  guilds  and  fraternities,  the  menof  learning  into 
colleges  and  halls,  the  poor  into  hospitals,  and  those  called 
religious  into  monasteries.  Now  in  all  these  the  nation  have 
a  publick  interest,  these  are  all  places  and  people  of  publick 
interest  and  concern." 

But  whatever  interest  the  publick  may  have  in  such  insti- 
tutions, and  whatever  necessity  may  exist  for  their  reform 
and  improvement  we  are  told  by  the  plaintiffs  that  the  leg- 
islature have  no  power  to  apply  a  remedy,  but  that  resort 
must  be  had  to  some  other  tribunal  or  the  evils  however 
great  must  be  submitted  to. 

(26)  4  Mod.  Rep.  11". 


SUPERIOR  COURT,  NEW-HAMPSHIRE.  If 3 

It  may  here  be  generally  observed,  that  unless  (he  legis- 
lative power  can  remedy  defects  in  ihe  original  charter  es- 
tablishing such  institutions,  no  remedy  can  be  applied  ;  for 
whatever  authority  the  courts  of  chancery  or  King's  bench 
can  exercise,  must  be  confined  to  the  existing  statutes,  and 
can  make  no  provision  to  guard  against  evils  in  future  cr  to 
secure  advantages  not  already  provided  for(27). 

In  speaking  of  legislative  power  without  reference  1o  the 
restrictions  of  our  constitution  (which  we  shall  presently 
consider)  we  could  not  have  expected  to  hear  the  plaintiffs 
attempt  upon  English  principles  to  support  the  position  that 
it  is  inadequate  to  the  correction  or  amendment  of  existing 
laws  or  charters.  The  undisputed  text  book  of  the  English 
law  in  its  comments  upon  the  legislative  power  of  Great-Bri- 
tain is  in  this  language  : — "  It  hath  sovereign  and  uncontroul- 
able  authority  in  making,  confirming,  enlarging,  restraining, 
abrogating,  repealing,  reviving  ami  expounding  of  laws  con- 
cerning matters  of  all  possible  denominations,  ecclesiastical 
or  temporal,  civil  or  military,  maritime  or  criminal." — "  All 
mischiefs  and  grievances,  operations  and  remedies,  that 
transcend  the  ordinary  course  of  laws  are  within  the  reach 
of  this  extraordinary  tribunal(28)." 

It  may  be  my  misfortune  not  to  have  better  understood 
the  object  of  that  part  of  the  gentleman's  argument  in  which 
he  dwelt  with  so  much  eloquence  upon  the  weakness  and 
wickedness  of  our  legislature.  Whether  it  were  intended  to 
prove  that  no  legislative  power  exists  in  our  government  or 
to  shew  the  impropriety  of  that  power  being  exercised  by 
our  general  court,  the  force  of  it  was  equally  lost  upon  my 
unbelief.— Our  legislature  (said  the  gentlemen)  are  illiterate, 
are  ignorant,  and  "he  cannot  tell  whether  their  language  is 
of  the  English  or  Indian  tongue."—"  They  are  subject  to 
passions  and  may  be  influenced!)}-  intrigue."— "  Majorities 

(•27)   1    I'.lk.  (>,.., in. -iSt—IJar  (Jli.  !'. --  :  !■:  i   '"h.  Rep.  66: 
k>  l  Ulk     f'jini  i.  I G i». 


174  DARTMOUTH  COLLEGE  VS.  WOODWARD 

are  always  wrong." — If  these  things  be  so,  it  is  to  be  regret- 
ted that  all  the  candour  and  reason  of  that  part  of  the  gen- 
tleman's argument  should  be  lost  upon  a  tribunal  who  have 
not  power  peaceably  to  change  our  form  of  government,  and 
who  probably  cannot  be  persuaded  to  recommend  rebellion. 
But  from  such  gloomy  reflections  let  us  have  a  moment's 
relief  in  a  specimen  of  that  logick  by  which  these  misde- 
meanours are  proved  upon  the  legislature.  "If"  (said  the 
gentleman)  "  certain  individuals  without  authority  had  taken 
possession  of  the  college  buildings,  they  would  have  been 
guilty  of  trespass. — The  legislature  passed  an  act,  in  Ihe 
execution  of  which  they  became  authorized  to  take  posses- 
sion ;  therefore  the  legislature  are  trespassers,  Sec — Had 
a  similar  mode  of  reasoning  been  applied  to  that  gentleman's 
judicial  proceedings,  it  might  have  brought  him  and  his  log- 
ick to  a  conclusion  not  altogether  so  agreeable. — For  in- 
stance, if  the  sheriff  of  the  county  execute  a  person  without 
authority,  he  is  guilty  of  murder — That  gentleman  and  his 
associates  upon  the  bench  in  the  due  course  of  judicial  pro- 
cess gave  the  sheriff  authority.     Therefore,  &c. 

Again  for  the  task  he  has  nssigned  to  us — After  ad- 
mitting that  the  king  of  Great  Britain  possesses  much 
power,  and  saying  that  parliament  is1  omnipotent,  it 
is  asserted  that  our  defence  cannot  be  supported  but  by 
shewing  that  our  legislature  possesses  more  power  than  king 
and  parliament  both.  Now  whatever  might  be  the  gentle- 
man's doubts  as  to  the  national  language  of  our  legislature 
it  is  believed  the  legislature  would  be  at  no  loss  for  the  na- 
tional character  of  such  reasoning. 

But  we  shall  be  content  with  that  portion  of  parliamentary 
power  which  may  be  left  to  our  legislature  after  abating  from 
it  all  the  restrictions  of  the  constitution.  For  "an  act  of  par- 
liament is  the  exercise  of  ihe  highest  authority  that  this 
kingdom  acknowledges  upon  earth.  It  hath  power  to  bind 
'nery  subject  in  U\o  land  and  the  dominion?    f hereunto   !»e- 


SUPERIOR  COURT,  NEW-HAMPSHIRE.  1T5 

longing,  nay,  even  the  king  himself,  if  particularly  named 
therein(29)."  And  yet  while  the  very  existence  of  gov- 
ernment requires  that  the  legislature  should  have  power  to 
pass  laws  which  may  affect  the  property,  liberty  or  life  of 
every  citizen  of  the  state,  it  is  argued  that  an  authority 
equal  to  the  establishment  of  an  ordinary  municipal  regula- 
tion would  be  unsafe  in  their  hands  upon  a  presumption  of 
the  possibility  of  its  abuse. 

Such  was  the  gentleman's  idea  of  their  propensity  to 
abuse  power,  that  he  could  find  for  them  no  parallel  on  earth, 
but  he  lias  gone  to  the  court  of  Pandemonium  for  illustra- 
tion. Had  the  legislature  committed  all  the  outrages  charg- 
ed upon  them,  without  such  resort  to  heat  his  imagination, 
might  not  his  memory  have  supplied  him  a  reference  of  more 
recent  authority  ? — Might  he  not  have  pointed  to  a  tribunal 
to  which  even  Rhadamanthus  would  have  surrendered  his 
robe  and  seal. 

The  legislature  forsooth  so  subject  to  "passion"  and  "  in- 
trigue" are  to  be  denied  jurisdiction  over  this  corporation 
that  the  supreme  controul  of  it  may  be  vested  in  some  haH 
dozen  trustees,  whom,  it  must  be  taken  for  granted,  no  pas- 
sions can  ever  move — no  intrigue  ever  influence  ! 

That  the  legislative  power  is  amply  sufficient  for  muci. 
greater  things  than  ours  has  attempted  in  this  case  is  no', 
only  true  in  theory  but  that  it  has  long  been  exercised  in 
practice  we  will  shew  by  a  series  of  cases  both  in  (Jrea: 
Britain  and  the  colonies.  By  the  English  doctrine  so  fai 
are  corporations  of  any  kind  from  being  above  the  legislative 
power,  that  they  can  be  dissolved  at  the  pleasure  of  parlia 
merit  ;  and  a  fortiori  must  be  subject  to  every  regulation 
which  parliament  may   deem    expedient(.'JO). 

This  power  was  ever  considered  safely  entrusted  to  par- 
liament as  the  guardians  of  the  community,  whose  interest" 

(-20)  1  Rlk  r„i,nn.  Ifcii. 

'1(0  <?Kv.l  on  Coi-|.    \\~  ■    1  H'.k,  C'ymru  4ra— liar    Vr;r  Corp.  A 


1T6  DARTMOUTH  COLLEGE  VS.  WOODWARD. 

as  individuals  or  corporators  were  there  represented. — A 
reason  which  could  not  apply  to  an  extension  of  the  same 
authority  to  the  crown. — Nor  is  it  pretended  that  the  king 
can  in  all  cases  exercise  the  same  jurisdiction. 

What  then  is  to  he  inferred  from  the  authorities  cited 
by  the  plaintiffs  to  shew  that  the  crown  has  not  the  power, 
which  we  say  the  legislature  has.  Suppose  they  had  pro- 
duced the  same  number  of  authorities  to  prove  that  the  cri- 
er of  your  honours'  court  does  not  possess  such  power! — 
We  might  perhaps  be  disposed  to  say  he  would  not  be  less 
suitable  than  "  his  majesty"  to  exercise  it— but  by  no  means 
to  suppose  it  disproved  any  position  we  have  attempted  to 
support.  As  it  is  not  our  intention  to  rely  upon  any  parlia- 
mentary precedent,  where  our  constitution  shall  be  found  to 
have  abridged  the  legislative  power,  so  we  at  once  disclaim 
the  application  of  precedents  to  shew  the  want  of  such  au- 
thority in  the  crown — a  power  some  of  the  prerogatives  of 
which  are  possessed  by  our  legislature,  but  which  in  itself 
is  totally  destitute  of  the  authority  with  which  the  legisla- 
ture are  entrusted  as  the  representatives  of  the  people. 

When  the  nation  was  dissatisfied  with  the  operations  of 
the  land  bank  and  south- sea  scheme,  no  difficulty  existed 
for  want  of  power  in  parliament  to  take  away  their  char- 
ters and  even  make  the  members  individually  liable  for 
bills(31).  In  the  time  of  Henry  sixth  a  statute  was  passed 
by  which  all  corporations  and  licences  granted  by  that  prince 
were  declared  to  be  void(32).  Monopolies  granted  by  char- 
ter are  always  abolished  by  parliament  when  thought  prop 
er(33).  So  the  fee  for  admission  into  trading  companies  is 
altered  almost  yearly  by  parliament,  although  much  against 
the  inclination  of  the  corporators ;  as  also  the  qualifications 
and  number  of  members. — In  the  23d  of  Geo.  II.  a  corpo- 
ration was  established  for  trade  1o  Africa,  with   great  detail 

(31)  5Rus.  Mod.  Eu.  14. 
(.«)  Ma-..  Abr.  Stat.  F.  IS 
■"<})  1  Trvi    W   M.  is). 


SUPERIOR  COURT,  NEW-HAMPSHIRE.  177 

in  its  rights,  privileges,  &c.  and  by  statute  the  fort  of  Sen- 
egal with  all  its  dependencies  had  been  vested  in  it;  still  in 
the  5th  of  Geo.  III.  parliament  thought  proper,  on  much  de- 
liberation and  after  much  opposition,  to  take  from  their  ju- 
risdiction that  fort  and  a  large  extent  of  coast,  vest  it  in 
the  crown  and  declare  the  trade  thither  free  to  all  his  maj- 
esty's subjects — Indeed  for  proof  that  parliament  have 
controuled,  altered,  and  even  abolished  corporations  at  their 
pleasure,  it  cannot  be  necessary  to  refer  to  particular  cases, 
while  no  book  upon  the  subject  can  be  found  that  does  not 
recognize  the  principle(34).  But  if  examples  of  a  college 
are  necessary,  among  many  others,  that  of  Manchester  col- 
lege may  be  noticed,  where  parliament  took  from  a  special 
visitor  the  power  of  visitation  and  vested  it  in  the  crown 
by  the  2d  of  Geo.  11.(35).  Also  the  case  of  Rex  &  Reg. 
vs.  St.  John's  college,  where  by  statute  of  1  "W.  &  M.  for 
abrogating  the  oaths  of  allegiance  and  supremacy,  it  was 
provided  that  the  office  of  head  or  fellow  of  a  college  in  ei- 
ther university  should  be  vacated  if  the  incumbent  refused 
the  new  oath (36). 

In  this  country  too  our  provincial  assemblies  exercised 
the  same  power  and  often  changed  the  whole  organization 
of  such  institutions. — An  act  was  passed  in  Connecticut 
in  1723  without  petition  or  consent  of  the  corporation  "  For 
the  more  full  and  complete  establishment  of  Yale  College, 
and  for  enlarging  its  powers  and  privileges."  By  this 
act  the  number  of  trustees  was  enlarged,  new  offices  creat- 
ed, and  new  regulations  made  with  regard  to  the  number 
which  should  constitute  a  quorura(37). 

By  an  order  of  the  general  court  of  the  province  of  Mas- 
sachusetts, 1673,  an  addition  was  made  to  the  members  of 
the  corporation  of  Harvard  College,  against  the  will  of  the 

f.34)  2  Term.  Rq>.  533.-8  Term.  Rep.  4  30— Doiig>  Rep  637. 
35)  4  Term  Hep.  236-7 — 244. — 2  Term  Kep.  31*. 
(3fi)4.M'Ml.  Rep.  233. 
(37)  2  Dou£.  Summary  183 

24 


178  Dartmouth  college  vs.  woodward. 

corporation's).  In  1784,  the  charter  of  Trinity  church 
in  New-York,  with  regard  to  induction  was  repealed  by  the 
legislature(39).  To  these  might  be  added  mapy  other  in- 
stances, (as  3  John.  Rep.  127—151,,  &c>  But  I  will  here 
leave  the  question  as  to  the  subjection  of  corporations  to 
the  general  legislative  power  with  an  offer  to  abandon  the 
defence  when  one  unequivocal  authority  shall  be  produced 
by  the  plaintiffs  to  shew  that  the  exercise,  of  such  power  by, 
the  legislature  of  Great-Britain  was  ever  adjudged  illegal. 

The  plaintiffs  however  choose  not  to  rest  the  validity 
of  these  acts  upon  general  legislative  power,  but  say,  that 
whatever  right  the  parliament  of  Great-Britain  or  the  pro- 
vincial assemblies  before  our  revolution  might  have  had, 
to  have  passed  the  acts  in  question,  that  our  legislature  now 
has  not  that  power  by  the  provisions  of  our  constitution  ; 
and  therefore  in  the  third  place — 

III.  They  are  contrary  to  Ute  constitutions  of  New-Hamp- 
shire, and  of  the  United  States. 

Asfounder  and  visitor  of  eleemosynary  corporations  where 
no  visitor  is  expressly  appointed,  our  legislature  succeeds 
to  all  the  rights  of  the  crown;  "  and"  (says  Judge  Spencer) 
*•  while  acting  within  the  pale  of  the  United  States  and  state 
constitutions  has  all  the  omnipotence  of  parliament (40). 

"When  the  people  (says  chief  justice  Kent)  create  a 
single  entire  government,  they  grant  at  once  all  the  powers 
of  sovereignty.  The  powers  granted  are  indefinite  and  in- 
capable of  enumeration.  Every  thing  is  granted  that  is  not 
expressly  reserved  in  the  constitutional  charter(41). 

Mostr  if  not  all  the  restrictions  upon  legislative  power  in 
our  constitutions  originated  from  the  previous  exercise  or 
abuse  of  the  power  having  been  attended  wi'h  evil — And  if 
we  look  at  our  constitutions,  advised  by  the  precepts  of  the 

(33)  1  Hutch.  Hist.  159- 

(39)  9  Johns.  Rep.  127. 

(40)  7  Johns.  Rep.  492. 

(41)  9  Johns  Rep-  574, 


SUPERIOR  COURT,  NEW-HAMPSHIRE.  1JH 

learned  commentator,  for  Ihe  interpretation  of  statutes,  "  by 
considering  the  reason  and  spirit  of  them,  or  the  caust 
which  moved  the  legislature  to  enact  them,7' (42)  we  shall 
not  find  by  the  existence  of  any  evils  resulting  from  this  pow- 
er, cause  for  any  restriction  upon  it  by  the  framers  of  the  con- 
stitution. Whatever  might  have  been  the  complaints  of  cor- 
porations erected  for  private  emolument,  of  encroachments 
upon  their  rights,  ihere  was  no  pretence  that  parliament  should 
not  have  jurisdiction  and  controul  over  publick  institutions, 
and  that  the  same  power  should  not  continue  in  our  legisla- 
ture. There  might  have  been  reason  why  security  should  have 
been  provided  for  the  rights  of  individuals  in  corporations  of 
a  private  nature.  In  those  corporations  where  the  members 
as  such  have  personal  privileges  and  interests — and  no  ob- 
jection could  exist  against  rendering  them  perpetual  where 
the  individual  alone  and  not  the  publick  was  concerned. — 
But  our  fathers  did  not  come  to  the  work  of  framing  our  con- 
stitution with  sorrow  or  regret  that  the  sacred  oracles  of  God 
had  been  rescued  from  darkness  by  the  abolition  of  the  mo- 
nasteries. They  did  not  come  to  that  work  with  a  wish 
that  the  obsolete  systems  of  science  and  theology,  which 
the  ancient  colleges  were  the  last  to  abandon,  should  again 
be  imposed  upon  the  community  at  the  pleasure  of  those  in- 
stitutions. They  approached  the  task  with  a  belief  upon 
which  they  acted,  that  those  interests  and  institutions  in 
which  the  publick  were  most  concerned  would  always  find 
sufficient  protection  in  the  wisdom  and  integrity  of  that  de- 
partmentof  government  to  whom  the  publick  weal  is  conlided. 
ft  was  therefore  they  confided  to  the  legislature  the  power 
and  made  it  their  duly  "  to  assemble  for  the  redress  of  pub 
lick  grievances  and  for  making  such  laws  as  the  publick  L'ood 
may  require. "(43)  And  from  time  to  time  to  make,  ordain, 
and  establish  all  manner  of  wholesome  and  reasonable  orders, 

(12)  I.  nik   Cum.  01 
,  t.i;  N    li   Const.  :. 


100  DARTMOUTH  COLLEGE  VS.  WOODWARD. 

laws,  statutes,  ordinances  and  directions,  either  with  penal 
ties  or  without(44)." 

That  it  could  not  have  been  intended  by  the  framers  of 
the  constitution  to  restrict  the  legislative  power  upon  this 
subject  we  think  is  apparent  from  the  nature  of  the  institu- 
tion and  its  intimate  connexion  with  government — as  al- 
so from  the  general  provisions  of  the  constitution  itself 

It  is  a  proper  subject  of  legislation,  as  a  publick  civil  in- 
stitution. But  the  plaintiffs  have  insisted  that  "  it  is  a  pri- 
vate eleemosynary  corporation,"  and  that  statement  is  at- 
tempted to  be  supported,  in  the  first  place,  by  confounding 
this  institution  with  "  Moor's  Indian  charity  school"  which 
Dr.  E.  Wheelock  claimed  as  his,  and  over  which  no  other 
jurisdiction  has  been  exercised  but  at  his  request.  Now  no 
fact  on  record  is  more  clearly  stated,  than  that  this  institution 
and  Moor's  Indian  charity  school  were  entirely  distinct  ami 
independent  of  each  other  in  their  origin  and  establishment  ; 
were  ever  governed  separately,  without  the  least  connexion, 
until  the  school  solicited  the  interference  of  the  legislature 
and  college.  Their  funds  and  property  are  now  distinct 
and  separate.  For  proof  of  this  we  need  no  more  time  than 
is  necessary  to  read  the  record  of  a  vote  passed  by  the 
plaintiffs  May  7,  1T89 — as  follows:  "Representations  having 
been  made  to  this  board,  that  apprehensions  have  arisen 
in  the  minds  of  some  persons,  that  monies  collected  in  Great 
Britain  by  the  Rev.  Messrs.  Whitaker  and  Occum  for  the 
use  of  Moor's  charity  school  under  the  direction  of  the  Rev. 
Dr.  Wheelock,  have  been  applied  by  this  board  to  the  use 
and  benefit  of  Dartmouth  College  ; — resolved,  that  this  board 
have  never  had  any  controul  or  direction  of  said  monies,  nor 
have  they  to  their  knowledge,  at  any  time  received  or  ap- 
plied any  sum  or  sums  thereof  to  the  use  and  benefit  of  said 
college, &c.  A  letter  of  instruction  to  Dr.Wheelock  from  the 
honourable  board  of  trust  of  that  school  in  England,  April  25, 
(44)  Ibid.  7. 


SUPERIOR  COURT,  NEW-HAMPSHIRE.  181 

1771,  states  that  "  the  corporation  of  Dartmouth  College  in 
its  nature  and  designs  differs  from  the  establishment  of  their 
school"  and  forbids  Dr.  Wheelock  from  subjecting  the  school 
or  its  funds  to  the  disposition  of  that  institution.  Therefore 
we  will  not  trouble  ourselves  here  to  settle  what  kind  of  es 
tablishment  Moor's  school  may  be,  or  from  whom  it  derived 
its  funds,  since  that  is  not  this  institution.  The  source 
whence  this  institution  has  derived  its  support  is  of  a  nature 
so  publick  that  no  difficulty  occurs  in  pointing  to  it. 
Among  the  publick  grants  for  its  establishment  and  support, 
was  that  of  the  township  of  Landaff,  containing  twenty-four 
thousand  acres  of  land  January  19,  17 TO,  long  before  the 
board  was  organized  under  the  charier  ;  also  a  tract  of  three 
hundred  acres  in  Hanover,  the  same  upon  which  the  build- 
ings are  located. — In  the  same  charter  was  made  a  grant 
of  two  hundred  acres  adjoining  to  Dr.  E.  Wheelock's,  in 
consideration  of  his  services  and  expences  to  aid  the  insti- 
tution— services  and  expences  it  would  have  seamed  unne- 
cessary for  the  government  \o  remunerate,  if  they  were  de- 
voted as  the  plaintiffs  must  pretend,  to  his  private  use  and 
property.       The   legislature   in    1773,   made   a  donation  of 

'2000  dollars,  and  in  1?87,  granted  a  lottery  to   raise 

dollars  in  aid  of  its  funds  , — in  1789,  a  tract  of  42,000  acres 
of  land— in  1805,  900  dollars— and  in  1807,  a  tract  of 
23,000  acres  of  land  ;  and  from  the  state  of  Vermont  in 
1785,  was  received  a  grant  of  land  containing  11,500  acres. 
That  this  is  a  private  charity  has  been  urged  too  from  the 
circumstance  of  its  being  called  a  college — That  although 
universities  are  publick  civil  corporations  in  England  and 
throughout  Europe,  jet  that  colleges  are  there  consider- 
ed eleemosynary  institutions.  1  do  not  understand  the  coun- 
sel to  deny  I  hat  universities  are  publick  civil  corporations — a 
principle  indeed  well  established  by  all  miters  upon  the  »nb 
ject(4o). 

(45)  1  Blk.Coui.  471  —  ■:  liin.  Civ.  I,*  iij.   I  ;6. 


182  DARTMOUTH  COLLEGE  VS.  WOODWARD. 

What  are  called  colleges  in  the  universities  in  Europe  ; 
and  by  which  from  the  resemblance  in  name,  the  learned 
counsel  have  attempted  to  prove  this  to  be  a  private  chari- 
ty, are  mere  conditional  appropriations  of  funds  for  the  sup- 
port of  persons  of  certain  descriptions  called  the  masters, 
fellows  and  students,  subject  to  the  inspection  and  controul 
of  the  individual  who  makes  the  appropriation ;  and 
have  no  more  power  of  conferring  degrees,  or  of  doing  any 
other  act  which  a  university  may  do,  than  our  parishes  have, 
which  are  incorporated  for  the  support  of  ministers.  Al- 
though this  institution  is  called  by  the  name  of  college,  still, 
says  the  authority  before  referred  to,  the  design  of  the  in- 
stitution must  determine  the  extent  of  its  political  rights. — 
And  whether  the  act  creating  the  corporation  was  a  publick 
or  private  act  or  charter  in  its  terms,  could  make  no  differ- 
ence as  it  is  the  extent  of  the  object  which  makes  the  cor- 
poration a  publick  one (46). 

What  then  must  have  been  the  plaintiffs'  desperation  to 
have  seized  as  the  great  point,  on  which  to  build  so  mighty 
an  argument,  the  circumstances  of  this  institution  being  call- 
ed a  college,  while  it  differs  in  fact  from  a  college  in  every 
particular  of  its  design,  privileges  and  powers.  By  predi- 
cating their  argument  upon  the  technical  definition  of  a  col- 
lege establishment,  do  they  intend  to  deny,  that  this  institu- 
tion was  erected  for  the  purposes,  with  the  privileges  and 
powers,  and  subject  to  the  liabilities  of  an  English  universi- 
ty ?  This  corporation,  was  erected  for  the  promotion  of 
learning — Its  officers  (says  the  chapter,  p.  11)  may  exercise 
their  authority  "  as  fully  and  freely  as  any  like  officers  in 
any  of  our  universities,  colleges  or  seminaries  of  learning  in 
our  realm  of  Great-Britain,  lawfully  may  or  ought  to  do."  It 
also  ha-;  the  power  of  conferring  "  any  such  degree  or  de- 
grees" &c.  "  as  are  usually  granted  in  either  of  the  univer- 
sities or  any  other  college  in   our   realm  of  Great  Britain,'"' 

(46)  Bac.  Ch.  Us.— 2  Atk.  87—10  Co.  Rep.101.  Bac.  Abr.  Stat. 


SUPERIOR  COURT,  NEW-HAMPSHIRE  183 

&c.     That  this  corporation  has  other  objects  and  duties  than 
mere  colleges,  which,  (says  a  learned  civilian)  "  were  form- 
erly held    to  be   ecclesiastical  establishments,"(47)  is  per- 
fectly apparent  from  its  own  proceedings.     The  same  shew 
that  it  has  never  doubted  to  use  the  privileges  of  a  universi- 
ty.— "  The  power  or  faculty  of  teaching  these  [the  sciences 
and  professions]  were  bestowed  by  the  state  to  the  seminary, 
by  the  seminary  to  the  individual,  and   hence  in   process  of 
time,  these  branches  of  learning  came  to  be  called  faculties, 
and  the  criterion  or  essential  difference  of  an  university  was 
the  power  and  licence  of  teaching  the  four  faculties,  the  sup- 
posed compass  of  universal  knowledge" — (48)  the  trustees 
of  this  institution  have  not  only  exercised  the  powers  of  a  uni- 
versity, but  have  used  and  even  preferred   that  name  as  the 
most  appropriate  until  by   some  strange    coincidence   it  be- 
came obnoxious  at  the  moment  it  became  the  legitimate  title 
by  the  act  of  the  legislature — "Whereas  the  duties  of  presi- 
dent of  this  university"' — is  the  record   of  their  memorable 
vote  of  Nov.  1814  ;  which  being  very  important  in  its  con- 
sequences was  undoubtedly  prepared  with  all  the  precision 
and  accuracy  of  the  honourable  board.     By  that  name  were 
they  almost  invariably  styled  in  their  official  acts,  their  me- 
morials,  records,   catalogues,  &c — That   their  practice  in 
this  respect  was  correct,  and  that  the  term  college  and  uni- 
versity are  now  frequently  used  for  each  other,  appears  by 
the  same  authority  before  cited, — where  it  is  observed  that 
"  even  independent    of  the    special  words    of  its    charter, 
Dublin  is  properly  a  university,  so  is  Glasgow,  though  con- 
sisting of  but  one  collcge"(49).      "  One    of  the  most  distin- 
guishing features  of  modern  universities  is  the  power  of  con- 
ferring degrees"  (60). 

As  the  nut  lire  ol  this  institution,  so  its  object  and  intimate 
connexion  with  government  require  their  care  and  controul- 

(47)  2  Bro.  Civ.  Law  156. 
f4S)  '2  I'.ro.  Civ.  Law.  152. 
H'J)  2  Uro.  Civ.  Law  15*— J  not* 
'jiiS  ibid. 


1 84  DARTMOUTH  COLLEGE  VS.  WOODWARD. 

And  we  are  not  left  to  conjecture  its  object— lis  charter 
declares  it  to  be  the  "  spreading  of  christian  knowledge" — 
and  "  that  the  best  means  of  education  may  be  established  in 
our  province  of  New-Hampshire." — Had  the  charter 
proceeded  no  further,  hopeless  as  might  seem  the  effort,  still 
the  plaintiffs  would  have  had  some  more  plausible  pretence 
than  at  present,  for  making  a  question,  whether  such  be  an 
object  of  private  benefit  only,  or  of  publick  interest  and 
concern. — But  the  charter  in  the  same  clause  has 
anticipated  the  only  answer  which  could  be  given 
and  unequivocally  declares  it  to  be  "for  the  benefit  of  said 
province." — Is  such  a  purpose  then  not  within  the  proper 
sphere  of  legislation  in  a  government  like  ours  ?  and  have 
the  framers  of  our  constitution  so  decided  ?  Devest  the 
subject  of  the  specious  garb  in  which  the  learning  and  in- 
genuity of  the  counsel  have  enveloped  it,  and  what  other 
is  the  naked  question  presented  ? — They  deny  that  the  leg- 
islature has  any  constitutional  right  to  interfere  with  the  con 
cerns  of  this  institution. — Its  charter  declares  it  to  have 
been  established  for  the  purpose  of  "spreading  christian 
knowledge,"  and  "  that  the  best  means  of  education  maybe 
established  in  the  province  of  New-Hampshire  for  the  bene- 
fit of  said  province."  What  do  they  then  but  deny  the 
publick  interest  in  these  objects?  If  such  a  doctrine  be  in- 
troduced by  the  influence  of  this  institution,  then  indeed  if 
the  government  have  not  power  to  reform,  they  should  have 
to  annihilate  it. — Nothing  less  than  the  solemn  formality  with 
which  the  plaintiffs'  counsel  have  attempted  to  prove  that 
the  "diffusion  of  knowledge"  and  the  "means  of  education" 
are  not  proper  subjects  of  legislation,  could  be  deemed  a 
sufficient  apology  for  any  remarks  from  us  upon  such  a  sug- 
gestion.— The  painful  emotions  excited  by  the  advancement 
of  such  a  doctrine  in  a  government  like  ours,  before  a  court 
of  justice,  are  in  some  degree  mitigated  by  the  reflection, 
(hat  <!ie  existence  of  a  court  of  justice — the  xery  existence 


SUPERIOR  COUit  1 ,  ss c w-HAiViraniRE.  J 85 

of  government  itself  shews  (hat  the  principle  they  contend 

for  has  not  yet  been  adopted   to  any  extent  in  practice. 

And  that  it  never  will  be,  we  trust  to  the  wise  provision  of 
our  laws*,  the  intelligence  and  integrity  of  tribunals  appoint- 
ed for  their  interpretation,  and  that  temperate  but  resolute 
spirit  of  patriotism  and  order  which  shall  eventually  enforce 
their  observance. 

But  even  the  broad  position  assumed  by  the  plaintiffs  can* 
not  require  of  me  in  the  present  state  of  society  to  discuss, 
particularly  the  connexion  of  (he  institutions  of  education 
with  the  existence  of  government — a  point  so  kw  since  set- 
tled in  every  place  where  such  institutions  have  existed.  I 
would  rather  read  to  them  the  preamble  of  a  bill  relative  to 
literary  institutions,  some  twenty  years  since,  recommended 
to  the  legislature  of  Virginia  by  a  Jefferson,  Pendleton 
and  others,  "in  which"  (said  an  eminent  lawyer  of  that 
state)  "  the  importance  of  the  subject  to  the  publick  is  most 
ably  and  eloquently  announced." 

The  communications  of  every  chief  magistrate  from  the 
origin  of  ourgovernment,  have  urged  its  importance  upon 
the  national  legislature.  Examples  of  practical  illustration 
are  found  in  those  sovereigns,  who  relax  the  bonds  of  slave- 
ry by  disseminating  the  means  of  knowledge, — who,  as  they 
would  shackle  their  subjects,  restrict  to  individuals  the  use 
of  those  means.  Even  Alexander  of  Russia,  enlightened  by 
the  principles  and  precepts  of  Christianity,  is  adding  fresh 
laurels  to  the  wreath  which  Europe  has  bound  upon  his  brow, 
by  Iraversing  his  empire  in  person  "  to  establish  and  regu- 
late schools  of  learning."  Such  is  the  effect,  that  a  distin- 
guished philosopher  of  Europe  lias  said  "  give  me  so  much 
of  the  literature  of  any  country,  thai  1  may  dictate  their  do- 
rnestiok  and  national  song'.,  and  I-^t  whoever  may  enact 
their  law«  or  wield  the  sword,  f  will  govern" — But  history 
;i1r;uTv  :il4  speculation  upon  this  subject.      The   records  oi 


I&6  DARTMOUTH  COLLEGE  VS.  WOODWARD. 

tyranny  and  oppression  shew  where  the  means  of  knowl- 
edge were  confined  to  a  few.  The  triumph  of  liberty,  jus- 
tice and  equal  rights  proclaim  the  publick  care  and  patron- 
age of  education.  Institutions  for  this  purpose  are  in  fact 
to  the  moral  and  political  Archimedes  the  "where  to  stand" — 
the  fulcrum  by  which  be  would  "  move  the  world." 

The  framers  of  our  constitution  have  not  left  us  to  infer 
their  opinion  from  the  nature  of  the  subject  only, — but  have 
declared  that  "  knowledge  and  learning  generally  diffused 
through  a  community  are  essential  to  the  preservation  of  a 
free  government" — and  have  rendered  sacred  the  declaration 
by  incorporating  it  in  the  same  instrument  by  which  is  trans- 
mitted to  us  that  form  of  government.  And  although  they 
could  not  have  anticipated  that  the  power  would  ever  be 
denied,  yet  as  the  duly  might  be  neglected,  they  have 
expressly  enjoined  upon  the  legislature  in  all  future  periods 
of  the  government,  to  cherish  the  interests  of  literature  and 
the  sciences,  and  all  seminaries  and  publick  schooIs(51)." 
They  have  declared  that  the  health,  the  existence  of  the  po- 
litical body  depends  on  the  pure  streams  of  knowledge, 
yet  we  are  now  told  that  the  legislature,  the  guardians  of 
the  commonwealth,  should  they  see  wicked  hands  mingling 
poison  with  the  fountain,  can  only  sit  as  silent  spectators  to 
witness  the  desolation  which  embraces  themselves  in  its  ru- 
ms. There  is  no  other  alternative,  the  government  must 
controul  these  institutions,  or  they  shall  controul  the  govern- 
ment. Can  it  be  believed,  while  the  attention  of  the  legis- 
lature is  particularly  directed  by  the  constitution  to  the  inter- 
ests of  literature,  that  the  whole  controul  of  its  concerns  is 
vested  in  an  institution  which  may  promote,  or  may  pros- 
trate its  interests,  entirely  beyond  the  reach  of  govern- 
ment ?  It  is  not  to  be  credited  that  those  who  established 
our  system  could  ignoranlly  have  so  constituted  it  the  de- 
stroyer of  itself,  or   that  they  would   with  malice  afore- 

'?!)  X.  IJ  .Con  t    p.  20. 


SUPERIOR  COURT,  NEW-HAMPSHIRE.  1ST 

thought  have  made  it  politically  a/e/o  de  se.     If  the  plaint 
iflfs'   construction,  however,  be    correct,  the  framers  of  our 
government  have  erected  over  the  constitution    a  machine 
more  formidable   than   Juggernaught,    and  chained  them- 
selves to  the  ground  to  be  crushed  by  its  wheels. 

But,  it  is  further  contended  should  the  nature  and  de- 
sign of  this  institution  and  its  connexion  with  the  best  inter- 
est of  the  community  render  it  in  that  view  a  proper  subject 
of  legislation  under  our  constitution,  that  still  the  personal 
interests  of  the  trustees  is  such  as  to  give  them  a  right  to  ex- 
claim "  procul  este"  to  every  power. 

This  view  of  the  subject  will  embrace  a  consideration  of 
those  particular  clauses  of  the  constitution  which  have  been 
noticed;  but  permit  me  here  on  this  suggestion  of  personal 
interest  to  refer  the  counsel  to  the  deliberate  declaration  of 
their  clients,  and  if  the  legislature  on  this  point  have  erred 
let  them  not  be  reproached  by  these  same  trustees,  who  in  a 
memorial  to  the  legislature  in  1804,  solemnly  averred  "  they 
had  no  other  interest  than  the  members  of  the  legislature 
themselves^ — And  well  might  they  so  declare  for  even  trus- 
tees in  a  hospital  receiving  a  lease  of  a  building  could  set  up 
no  such  pretence  as  the  present,  and  (said  lord  IWansfield) 
have  no  more  interest  in  the  thing  than  the  crier  of  a  court 
of  common  pleas  has  when  he  is  named  as  the  last  voucher 
in  a  common  recovery(52)."  But  as  a  certain  distinguish- 
ed  personage  when  reproached  for  using  profane  lan- 
guage, is  said  to  have  replied,  that  "he  did  it  in  his  charac- 
ter of  commander  in  chief  of  (he  army  and  not  as  bishop  of 
Osnaburgh,"  so  would  the  plaintiffs  now  pretend,  that  al- 
though as  trustees  they  have  disclaimed  all  interest  but  in 
common  with  every  other  citizen  of  the  stair,  vet  tjjr-ri  l|«<  < 
did  not  speak  in  their  character  of  visitors,  am!  ih.it  now  it- 
that  capacity,  they  have  a  most  undoubted  •,;<<!  v  ,:-•;(!,  in 
teres'. 

'-,  \  :  tini    ev.i 


188  DARTMOUTH  COLLEGE  VS.  WOODWARD 

Two  very  formidable  objections  to  their  supporting  such 
a  claim,  at  once  present  themselves— that  they  possess  no 
such  character  or  office  of  visitor, — and  that  the  office  itself 
would  give  them  no  such  personal  interest  as  is  contended 
for.  To  their  claim  to  such  an  office  the  very  absurd 
nature  of  the  pretence  would  seem  to  be  a  sufficient  answer. 
The  office  of  visitor  is  to  correct  the  abuses  and  misfeas- 
ance of  the  corporation,  or  trustees  who  in  this  case  consti- 
tute the  corporation. — "  Corporations,  being  composed  of 
<  individuals  subject  to  human  frailties,  are  liable  as  well  as 
"  private  persons  to  deviate  from  the  end  of  their  institu- 
1  lion,  and  for  that  reason  the  law  has  provided  proper  per- 
"  sons  to  visit,  enquire  into  and  correct  all  irregularities  that 
"  arise  "rn  such  corporations,  &c.(53). 

Now  lest  these  trustees  should  mismanage,  misapply  or  em- 
bezzle the  funds  of  this  institution,  they,  as  visitors  are  to 
examine  their  own  proceedings  as  trustees,  to  correct  the 
"  human  frailties," — to  see  that  no  fraud  is  done."  If  the 
law  can  tolerate  so  preposterous  an  idea,  let  us — "  tell  it  not 
in  Gath.' — The  reason  why  publick  corporations  of  this 
kind  are  said  to  have  no  visitor,  is  that  the  superintendence 
and  vigilance  over  them,  is  exercised  by  the  sovereign  as 
the  guardian  of  the  commonwealth,  who  alone  are  interested 
in  the  correct  management  of  the  property. — And  of  course 
this  visitatorial  power  of  the  legislature,  who  represent  the  sov- 
ereignty of  this  state,  is  not  distinguished  from  i(s  ordinary 
acts  of  legislation.  "And  this"  (says  sir  Wm.  Blaek^tune) 
"is  what  1  understand  to  be  the  meaning  of  our  lawyers  when 
they  say  that  these  civil  corporations  are  liable  to  no  visita- 
tion, that  is,  that  the  law  having  by  immemorial  usage,  ap- 
pointed ihem  to  be  visited  and  inspected  by  the  king" — &c. 
-'All  cci  porations  have  their  visitors,"  ike.  "  Those  merely 
riv'!.  by  the  king,unless  tiiey  have  been  endowed  by  a  sub- 
-ect,  and  derive  all  their  property  and  subsistence  from 
Com.    ISO 


SUPERIOR  COURT,  NEW-HAMPSHIRE.  lli'J 

him"  (54;.  "  If  (he  king  and  a  private  man  join  in  endowing; 
an  eleemosynary  corporation,  the  king  alone  shall  be  the 
founder  of  it(55).  "  And  in  general  the  king  being  the 
founder  of  al!  civil  corporations,"  Sec. (56) — "Of  universities, 
being  civil  corporations  the  king  is  visitor" (57). 

As  all  the  power  which  the  king  as  visitor  could  exercise 
over  these  corporations,  resulted  from  their  publick  nature 
and  the  interest  which  the  people  had  in  their  general  de- 
sign and  object,  and  vested  in  him,  as  the  guardian  and  pro 
rector  of  the  rights  of  the  people,  it  would  be  a  doctrine  un- 
fit for  this  country,  to  say  that  our  legislature  did  not  stand 
in  as  near  a  relation  to  the  community,  and  that  our  constitu- 
tion had  not  entrusted  them  with  as  ample  authority  in  this 
particular  as  could  be  exorcised  by  his  majesty. 

But  if  the  pkiiutitrs  are  desirous  to  make  a  fair  estimate 
of  the  personal  interests  to  be  derived  from  (he  office  of  vis- 
itor, had  they  possessed  it, — let  us  for  a  moment  suppose 
the  honourable  board,  tt.s  trustees,  making  up  their  accounts 
and  closing  the  books,  and  the  honourable  board,  as  visitors, 
perhaps,  by  way  of  distinguishing  the  capacity  in  which  they 
act,  reversing  their  wigs,  gravely  opening  the  books  to  set 
about  detecting  the  frauds,  checking  the  abuses  and  correct- 
ing the  '-  human  frailties"  of  (he  honourable  board  o(  trus- 
tees.— Let  them  then  be  advised  of  their  personal  interest 
by  the  learned  counsel  in  Rex  vs.  The  Bishop  of  Ely.  Ju 
that  case  where  the  visitor  had  (tie  power  of  appointment 
to  certain  offices  it  is  said  "  this  power  of  appointment 
claimed  by  the  visitor  is  not  an  interest."  On  the  ground 
of  interest  "  it  is  not  an  objection  lo  a  judge  that  he  is  a  bare 
trustee."(58) 

However,  if  the ir  visitatorial  power  in  this  institution  :.■> 
only  for  the  purpose  of  correcting  the  abuses  of  (he  trustee?., 

"  ■       i'iv.  I..V, 

■  I  I   l'.ik.<    .in     iSl. 

!    . 
•■;',  J  !!.-.-,.  (  iv.  !,;,■,    ; 

>''))  '  'i '••!,.,  k-  . .  ..!••,     i.  m       -U- ,  <_■  ..  .])')U''  lv.i.— .■; .'.  x. !'.  :st 


190  DARTMOUTH  COLLEGE  VS.  WOODWARD. 

it  is  not  taken  away,  and  probably  will  not  be  less  likely  to  be 
exercised  by  an  addition  to  the  number. 

The  general  spirit  of  the  constitution  appearing  to  protect 
these  legislative  proceedings,  we  find  it  necesary  to  inquire 
for  that  particular  clause  in  either  constitution  which  over- 
rules such  general  construction  ; — which  expressly  denies 
the  exercise  of  this  authority  and  entitles  eight  trustees  of 
Dartmouth  College,  to  say  to  the  supreme  power  of  the 
state  "  stand  thou  off"  we  are  mightier  "  than  thou." 

Some  embarrassment  might  be  anticipated  in  the  attempt 
to  designate  such  an  article  or  section — An  embarrassment 
which  even  the  plaintiffs'  counsel  seem  to  have  encountered 
with  no  great  success.  For  instead  of  putting  their  finger 
upon  the  page,  they  in  effect  have  thrown  to  us  the  statute 
book,  and  left  us  to  discover  by  conjecture,  or  accident  up- 
on which  they  most  rely  in  the  long  catalogue  by  them  cit- 
ed of  the  second,  twelfth,  fifteenth,  twentieth,  twenty-third, 
and  thirty-seventh  articles  of  the  New-Hampshire  bill  of 
rights,  and  tenth  section  of  the  first  article  of  the  United 
States  constitution. — Unfortunately,  however,  the  difficulty 
of  discovering   their  application  in  this  rase  is  not  entirely 

removed  even  by  the  ingenious  argument  upon  this  point 

To  read  at  length  the  clauses  cited,  would  seem  to  be  a  suf- 
ficient answer  to  a  suggestion  that  they  support  or  even 
countenance  any  of  the  plaintiffs'  pretensions. 

The  second  article  of  the  bill  of  rights  says — "  All  men 
have  certain  natural,  essential  and  inherent  rights— among 
which  are  the  enjoying  life  and  liberty,  acquiring,  possessing 
and  protecting  property,  and  in  a  word  of  seeking  and  ob- 
taining happiness." 

What  natural,  essential  or  inherent  rights  the  plaintiffs 
have  lost  by  these  acts  are  not  yet  designated,  or  what  hon- 
est mode  of  acquiring  property  is  debarred  to  them  docs  not 
appear. — We  think  it  has  been  shewn  that  the  object  of  thi& 
institution  was  not    the  private   emolument  of  the   trustees. 


SUPERIOR  COURT,  NEW-HAMPSHIRE.  191 

They  were  agents  appointed  for  certain  purposes  under  the 
act  of  incorporation,  who  as  they  have  justly  said  of  them- 
selves in  a  memorial  to  the  legislature,  other  than  the  one 
before  referred  to,  are  "  mere  stake-holders  for  the  publick" 
— If  the  late  board  then,  contrary  to  the  intent  of  the  char- 
ter, have  contrived  to  create  for  themselves  a  personal  inter- 
est and  property,  then  it  would  be  most  conclusive,  not  only 
as  to  the  propriety,  but  the  necessity  of  legislative  interfer- 
ence. There  is  no  disposition  wilh  the  defendant  to  fix  up- 
on the  plaintiffs  the  inference  so  fairly  established  by  the 
learned  counsel  in  the  case  of  Nason  vs.  Thatcher  &  al. 
when  an  objection  was  made  to  the  admission,  as  witnesses, 
of  the  trustees  of  the  Maine  Missionary  society  on  account 
of  interest,  property  being  devised  to  the  society  by  the  will 
in  question,  and  it  was  observed  "  they  were  mere  trustees 
to  convey  the  testator's  bounty  to  the  objects  of  the  institu- 
tion, and  to  consider  them  personally  interested  was  to  im- 
pute to  them  the  most  corrupt  intentions" (59).  The  plain- 
tiffs certainly  are  not  accused  while  they  may  forbear  an  at- 
tempt to  pervert  this  article  to  their  purposes,  or  establish 
upon  themselves  the  correctness  of  that  imputation. 

The  twelfth  article,  with  a  provision  similar  to  the  former, 
and  that  every  member  of  the  community  is  bound  to  con- 
tribute his  personal  service  when  necessary,or  an  equivalent, 
also  provides  that  "no  part  of  a  man's  property  shall  be  tak- 
en from  him,  and  applied  to  publick  uses  without  his  own 
consent  or  that  of  the  representative  body  of  the  people. 
Nor  are  the  inhabitants  of  this  state  controulable  by  any 
other  laws  than  those  to  which  they  or  their  representative 
body  have  given  their  consent." 

The  declaration  of  independence  renders  apparent  the  op- 
pression of  the  crown  and  government  of  Great  Britain,  in 
reference  to  which  this  provision  waa  adopted.  They  are 
there  complained  against  for  "  suspending  our  own  legisla 
f  59)  7  Mass.  Rep.  39*. 


iUli  DARTMOUTH  COLLEGE  VS.  WOODWARD. 

lures"  and  for  "  imposing  taxes  on  us  without  our  consent." 
Have  (he  plaintiffs  cited,  this  to  prove  by  that  clause 
which  guards  against  appropriating  private  property  to  pub- 
lick  uses,  that  publick  properly  may  be  used  for  private 
purposes  ? — That  what  is  expressly  appropriated  for  the 
benefit  of  the  province  of  New-Hampshire"  is  intended 
exclusively  for  the  use  of  eight  individuals  of  that  and  an 
adjoining  province  ?  Or  by  that  clause  which  guards  against 
ihe  appropriation  of  privaie  property  except  by  consent  of 
the  legislature,  to  prove  that  publick  agents  cannot  be  gov- 
erned even  by  the  legislature?  We  would  by  no  means 
grudge  them  any  advantage  to  be  derived  by  all  legitimate 
inferences  from  this  article  of  the  bill  of  rights. 

The  fifteenth  article  provides  that  "  no  subject  shall  be 
held  to  answer  for  any  crime  or  offence  until  the  same  is 
fully  and  plainly,  substantially  and  formally  described  to 
him,  or  be  compelled  to  accuse  or  furnish  evidence  against 
himself.  And  every  subject  shall  have  a  right  to  produce 
all  proofs  that  may  be  favourable  to  himself;  to  meet  wit- 
nesses face  to  face  and  to  be  fully  heard  in  his  defence  by 
himself  and  counsel.  And  no  subject  shall  be  arrested,  im- 
prisoned, despoiled,  or  deprived  of  his  property,  immuni- 
ties, or  privileges,  put  out  of  the  protection  of  the  law,  exil- 
ed or  deprived  of  his  life,  liberty,  or  estate,  but  by  the judg 
ment  of  his  peers  or  the  law  of  the  land." 

When  the  plaintiffs'  counsel  turned  to  this  article,  their 
natural  benevolence  and  sense  of  justice  must  have  over- 
powered the  suggestions  of  their  professional  engagement  in 
this  cause,  and  they  could  have  read  it  to  the  court  in  no 
other  character  than  as  advocates  of  the  late  venerable 
martyr  of  this  institution.  Had  we  appeared  to  proclaim 
his  injuries,  we  would  have  read  that  article  of  the  bill  of 
rights  and  the  plaintiffs'  memorable  record  of  September 
IK  15. — But  we  come  not,  in  the  language  of  that  clause. 
"to  hold"  the  plaintiffs  "to   answer   to  any  crime,"  and  if 


SUPERIOR  COURT,  NEW-HAMPSHIRE.  193 

otherwise,  we  would  not  violate  its  provisions  by   "  compel- 
ling" them  "  to  furnish  evidence  against  themselves." 

Should  we  for  a  moment  suppose,  that  the  plaintiffs,  per 
fas  ant  nefas,  had  acquired  some  "  property  or  immuni- 
ties," for  themselves  in  this  corporation ;  and  should  we 
further  suppose,  that  they  are  *'  deprived  or  despoiled"  of 
them  by  the  acts  in  question,  still  could  it  be  contended  that 
any  clause  in  that  article  renders  void  such  act  ? — Would 
it  be  said  (hat  the  exception  "  but  by  the  law  of  the  land," 
was  a  declaration  that  such  law  would  be  of  no  validity  1 
Or  shall  we  be  told  that  the  statutes  enacted  by  our  legisla- 
ture are  not  "the  law  of  the  land?"  Elementary  writers 
and  courts  of  justice  have  given  statutes  precedence  of  the 
unwritten  law  ;  but  the  reverse  of  that  rule  might  be  well  in- 
sisted on  by  those  who  hold  that  the  mill  of  a  few  individ- 
uals is  superior  to  both.  The  latter  clause  of  this  article 
is  a  literal  translation  from  Magna  Charta,  and  I  ask  them 
to  take  an  interpretation  of  it  from  no  less  authority  than 
the  great  oracle  of  the  English  law — "  Per  legem  terra."— 
"That  is,"  (saith  my  lord  Coke,  2  Inst.  45.)  "by  the  com- 
mon law,  statute  law,  or  custom  of  the  realm." — The  histo- 
ry of  magna  charta  must  be  too  familiar  to  need  at  this  time 
the  introduction  of  proofs  to  shew  that  its  provisions  were 
to  guard  against  the  arbitrary  proceedings  of  the  crown  and 
were  not  intended  as  a  restraint  upon  parliament. — And  in 
this  state  upon  solemn  argument  it  has  been  decided  that  a 
statute  enacted  by  the  legislature  in  due  form,  which  does 
not  conflict  with  any  other  provision  of  the  constitution  is 
"  the  law  of  the  land"  (60). — Even  the  plaintiffs*  argument 
seems  to  admit  that  these  acts  might  have  been  the  lam  had 
they  approved  of  them.  So  far  as  the  plainliffs  are  inter- 
ested in  them  it  is  in  their  character  as  citizens  and  mem- 
bers of  the  community(61),  and  so  far  they  have  consented 
by  their  representatives  agreeably  to  the  constitution.    The 

(60)  Mayo  vs.  Wilson,  Che*.  Co.  May  term,  1817 
■61 )  Vide  their  Mem.  to  Legis.  ISO.*?. 

2fi 


194      DARTMOUTH  COLLEGE  VS.  WOODWARD. 

framers  of  the  constitution  seem  to  have  guarded  with  a  suf- 
ficient precaution  the  law  making  power;  and  after  giving 
the  governour  a  negative  upon  the  other  two  branches,  proba- 
bly did  not  contemplate  requiring  the  consent  of  the  trus- 
tees of  Dartmouth  College  of  any  such  fourth  power,  as  ne- 
cessary to  the  validity  of  a  publick  law.  There  is  no  other 
power  in  our  government  than  the  legislative  and  executive 
to  give  any  act  validity  as  a  law. 

But  the  precedents  which  we  have  before  cited  of  the 
proceedings  of  parliament,  in  such  cases  settle  all  question 
as  to  the  application  of  this  article  to  legislative  power  ;  for 
it  is  to  be  recollected  that  parliament  were  under  all  the  re- 
straint of  this  article  which  our  constitution  imposes  ;  the 
same  being  a  provision  of  magna  charta.  Those  precedents 
of  course  confirm  the  correctness  of  Coke's  exposition,  as  do 
also  the  proceedings  of  our  own  legislatures  with  regard  to 
highways,  turnpike  roads,  canals,  &c.  Indeed  upon  any 
other  construction,  not  a  page  in  our  statute  book  but  is  stain- 
ed with  some  unconstitutional  act. 

The  next  article  urged  upon  the  court  was  the  twentieth. 
This  provides  that  "  in  all  controversies  concerning  proper- 
ty and  in  all  suits  between  two  or  more  persons,  except  in 
cases  in  which  it  has  been  heretofore  otherwise  used  and 
practised,  the  parties  have  aright  to  a  trial  by  jury  and  this 
method  of  proceeding  shall  be  held  sacred,  unless  in  cases 
arising  on  the  high  seas  and  such  as  relate  to  mariners* 
wages,  the  legislature  shall  think  it  necessary  hereafter  to 
alter  it." — Surely  no  difficulty  would  have  existed  in  judg- 
ing of  the  propriety  of  their  appealing  to  that  article  had  the 
counsel  proceeded  one  step  further  and  cited  the  verdict  in 
this  cause  as  proof  of  their  being  deprived  of  the  privilege 
secured  by  that  provison. 

The  next  in  order  on  their  list  of  grievances  is  the  alleged 
violatiot  of  the  twenty-third  article,  which  declares  that  "re- 
trospective laws  arc  highly  injurious, oppressive  and  unjust. 


SUPERIOR  COURr,  NEW -HAMPSHIRE  19a 

No  such  laws  therefore  should  be  made  either  for  the  decision 
of  civil  causes  or  for  the  punishment  of  offences.  These 
acts  invalidate  no  proceedings — punish  no  crimes  done  pre- 
vious to  their  date.  Had  they  provided  for  the  punish- 
ment of  offences  committed  previous  to  their  being  passed, 
then  indeed  it  would  be  proper  to  object.  But  such  is  not 
their  operation.  They  only  guard  against  the  occurrence  of 
evil  in  future.  The  legislature  most  unquestionably  took  a  re- 
trospective view  upon  the  operation  of  the  laws  as  they  then 
existed,  in  their  deliberations  to  remedy  the  defects.  And 
alarming  as  the  idea  may  be  in  some  cases  of  looking  back 
upon  past  transactions,  it  is  not  believed  that  our  constitu- 
tion forbids  recurrence  to  history  in  the  exercise  of  deliber- 
ation, or  proscribes  the  wisdom  of  experience.  In  any 
other  sense,  these  are  no  more  retrospect ive  than  the  ordina- 
ry alterations  of  tho  militia  and  poor  laws  or  those  prescribing 
the  mode  of  elections. 

The  thirty -seventh  article  closes  their  chapter  upon  the 
New-Hampshire  Bill  of  Rights.  This  declares  that  "  In 
the  government  of  this  slate  the  three  essential  powers  there- 
of, to  wit,  the  legislative,  executive  and  judicial  ought  to  be 
kept  as  separate  from  and  independent  of  each  other  as  the 
nature  of  a  free  government  will  admit,  or  as  is  consistent 
with  that  chain  of  connexion  that  binds  the  whole  fabrick 
of  the  constitution  in  one  indissoluble  bond  of  union." — 
The  object  of  the  counsel  by  introducing  this  article  proba- 
bly was  not  to  destroy  that  large  portion  of  his  argument 
which  consisted  in  urging  reasons  for  the  repeal  of  the  acts 
in  question,  but  its  effect  surely  must  be  to  shew  the  irrelev- 
ancy of  such  reasons  when  addressed  to  a  tribunal  whose 
duties  are  "  to  be  kepi  separate"  from  the  exercise  of  le- 
gislative power. 

Such  have  been  their  references  to  our  bill  of  rights,  that 
the  plaintiffs'  counsel  must  pardon  me  for  sometimes  sus- 
pecting them  of  an  intention  to  burlesque  their  client's  pre- 
4~"tions  in  this  canst*. 


196      DARTMOUTH  COLLEGE  VS.  WOODWARD. 

The  tenth  section  of  the  first  article  of  the  United  States 
constitution  cited  by  the  plaintiffs  declares  among  other 
prohibitions  that  "  no  state  shall  pass  any  bill  of  attainder, 
ex  post  facto  law,  or  law  impairing  the  obligation  of  con- 
tracts." 

•  It  cannot  be  necessary  at  this  time  to  consider  the  intent 
or  meaning  of  the  words  ex  post  facto  law,  as  it  has  long  since 
been  determined  that  they  refer  only  to  crimes  and  punish- 
ments, and  hare  no  bearings  upon  proceedings  of  a  civil  na- 
ture(62).  "  The  restraint  against  making  any  ex  post  facto 
law,  was  not  considered  (said  judge  Chase)  by  the  framers 
of  the  constitution,  as  extending  to  prohibit  the  depriving  a 
citizen  even  of  a  vested  right  to  property." 

But  at  last  it  is  insisted  that  these  are  <(  laws  impairing 
the  obligation  of  contracts."  Finding  that  the  straws  they 
have  seized  upon  in  the  struggle  cannot  support  their  sink- 
ing claim,  with  the  eagerness  of  desperation,  they  grasp  at 
this  shadow  of  a  pretence.  Yet  it  is  believed,  that  section 
cannot  by  any  force  be  so  distorted  as  to  extend  even  its  sha- 
dow to  a  purpose  so  oblique  and  distant  from  its  original  in- 
tent. If  any  interpretation  of  that  clause  can  be  made  ap- 
plicable to  the  present  case,  all  the  benefits  surely  should 
be  awarded  to  the  plaintiffs'  counsel  as  theirs*  discoverers. 
Most  unquestionably  by  the  survivors  of  the  convention  who 
framed  that  instrument,  such  an  idea  would  now  be  deemed 
original. — The  nature  of  the  causes  of  that  provision  and  of 
course  the  objects  to  which  it  alone  can  fairly  be  applied, 
had  no  relation  whatever  in  principle  or  operation  to  cases 
like  the  present. 

Previous  to  the  constitution,  it  had  been  practised  in  dif- 
ferent states  to  pass  acts  suspending  suits  on  contracts,  there- 
by impairing  the  obligation  of  immediate  payment.  Dis- 
tinctions had  been  introduced  where  foreigners,  or  person* 
of  different  states  were  parties,  &c.  And  cases  existed  of 
making  debts,  which  were  all  due,  payable  by  future  instal- 
(62)  3  Dal.  Rep.  396. 


SUPERIOR  COURT,  NEW-HAMPSHIRE  197 

ments(63)  In  Locke,  adrar.  vs.  Dane  &  al.(64)  Ihe  court 
say  "  the  clause  respecting  the  obligation  of  contracts  as  we 
all  know  was  provided  against  paper  money,  instalment  laws" 
&c. — "  It  would  be  carrying  it  much  beyond  its  natural  im- 
port, as  well  as  its  intended  operation  to  construe  it  as  pro- 
hibiting the  legislature  of  the  state  to  pass  a  law  confirming 
the  doings  of  the  court  or  other  publick  body  known  to  the 
law." 

But  how  is  this  corporation  a  contract  ? 

Who  are  the  parties  ? 

How  are  its  obligations  impaired  ? 
A  contract  in  its  common  acceptation,  is  an  agreement 
between  two  parties.  The  agreement  presupposes  a  con- 
ference as  to  its  terms,  and  a  consideration  for  its  founda- 
tion. There  is  a  mutuality  in  its  stipulations. — These  are 
general  principles(65).  The  term  is  usually  applied  to  ne- 
gociations  of  a  pecuniary  nature,  and  is  usually  confined  to 
transactions  between  individuals,  or  individuals  and  compa- 
nies. The  state  when  conferring  property  or  civil  privileges 
may  be  a  party,  and  though  in  such  case  an  action  would 
not  lie,  this  proves  the  confidence  which  our  fundamental 
laws  have  safely  placed  in  the  legislative  power. — But  when 
the  state  pass  a  law,  the  object  of  which,  is  of  a  publick  na- 
ture, it  is  indeed  difficult  to  understand  how  individuals  can 
make  it  a  contract  in  the  common  and  constitutional  meaning 
of  that  term.  In  a  case  much  stronger  than  the  present  it 
was  considered  by  the  counsel  as  well  as  the  court (66)  that 
"  the  notion  of  a  contracti>etween  the  government  and  cor- 
poration was  too  fanciful  to  need  any  observation"  and  the 
learned  counsel  in  Livingston  vs.  Van  Ingen  spoke  of  such 
an  idea  as  "  a  notion  too  refined  to  be  arted  upon, — that 
would  lead  to  results  the  most  extravagant  and  unjust.  It  is 
a  doctrine  too  absurd  to  be   sanctioned  by  a  court  of  jus- 

(63)  Adams  vs.  Story,  6  Am.  Law.  Jour.    17-i. — Fed.  No.  44. — 1    niack. 
Com.  Tuck.  \.  31-2. 

(64)  9  Mass.  R<-p.  3f)0. 

(65)  1  fjom.  on  Com  '2.— 2  lilk  C<>m  443.-5  Knsl.  Ron.  116. 

(66)  8  Mrcss.   Rpp.  U« 


198  DARTMOUTH  COLLEGE  VS.  WOODWARD. 

tice"(67).  Individuals  may  acquire  rights  and  privileges 
under  puhlick  laws,  without  holding  them  by  virtue  or  in 
consideration  of  any  contract,  in  its  usual  sense.  As  the 
officers  of  a  town  or  county  may  hold  their  offices  under  the 
law  creating  a  town  or  county,  but  should  the  legislature 
double  the  number  of  those  officers,  it  would  not  heretofore 
have  been  thought  that  the  United  States  constitution  could 
interfere.— That  scholastick  subtlety  and  ingenuity  by  which 
the  plaintiffs  would  raise  a  contract  in  this  transaction,  would 
prove  quite  too  much  for  their  purpose,  for  in  some  sense 
even  government  itself  is  a  contract,  and  by  the  same  rea- 
soning every  act  and  every  law  must  be  considered  in  the 
nature  of  contract,  until  the  legislature  would  find  themselves 
in  such  a  labyrinth  of  contracts,  with  the  United  States 
constitution  over  their  heads,  that  not  a  subject  would  be  left 
within  their  jurisdiction. — The  counsel  have  referred  to  the 
case  of  Fletcher  vs.  Peck(68)  which  is  certainly  very  far 
from  supporting  .their  doctrine  in  this  case.  It  shews  that  a 
grant  of  land  to  individuals  for  their  personal  benefit,  on 
a  valuable  consideration,  after  the  conveyance  had  been 
made,  the  interest  vested,  and  subsequent  sales  under  it, 
could  not  be  revoked — Also  the  case  of  New-Jersey  vs. 
Wilson(69)  that  a  treaty  or  bargain  with  the  Indians  for  val- 
uable consideration,  that  certain  lands  should  be  exempt 
from  taxation,  could  not  be  avoided. — As  also  the  case  of 
Terrett  vs.  Taylor  &  al.(70),  and  the  case  of  Pawlet  vs. 
Clark(71)  that  property  appropriated  for  one  purpose,  could 
not,  without  compensation  be  taken  and  appropriated  to  a 
different  use.  The  correctness  of  all  which  positions,  we 
have  no  disposition  or  need  to  controvert. 

The  plaintiffs  however  say,  an  express  contract  exists 
here  that  they,  and  they  alone  shall  be  trustees  of  this  insti- 

(f>F)  9  John.  Rep.  541. 

(68)  6  Crunch  Rep.  87. 

(69)  7  Cranch  Rep.  164. 

(70)  9  Cranch  Rep.  43. 

(71)  9  Cranch  Rep.  292. 


SUPERIOR  COURT,  NEW-HAMPSHIRE.  199 

tution.  And  why  shall  not  the  present  sheriff  resist  the 
proposed  law  for  a  new  division  of  counties  on  the  ground 
that  a  contract  would  be  violated  by  admitting  other  sheriffs 
upon  his  present  territory  ?  By  a  reference  to  the  charter  it 
will  appear,  that  the  corporation  was  created  independent  of 
the  trustees  ;  and  that  they  were  afterwards  appointed  in  a 
different  clause  of  the  charter.  The  corporation  is  in  fact 
so  constituted,  that  had  they  all  died,  or  all  resigned  their  of- 
fices,the  corporation  would  still  have  existed,  and  could  have 
been  reorganized  with  perfect  security  to  all  its  rights  and 
property — The!provision  in  the  charter  with  regard  to  the 
number,  was  intended  as  a  regulation  to  limit  the  board  in 
their  appointments,and  not  with  a  view  to  controul  the  legisla- 
ture. No  sacredness  can  be  attached  to  that  mere  regula- 
tion, established  by  the  crown,  more  than  to  a  law  under 
similar  circumstances,  which,  however  conclusive  in  its 
terms,  would  yield  to  the  rule  "  leges  posteriores,  priores 
contrarias,  abrogant." 

Who  are  the  parties  to  all  these  contracts  ?  can  there  be 
any  other  either  express  or  implied,  than  the  founder,  the 
power  creating  the  corporation  and  those  for  whose  benefit 
it  is  established.  As  a  publick  institution  we  believe  the 
crown  has  been  shewn  to  be  the  founder — Or  even  as  an 
eleemosynary  corporation,  that  the  rights  of  foundation  rest 
in  the  crown  from  the  publick  endowments.  The  crown 
also  was  the  power  that  created  it.  The  state  since  the 
revolution  succeeds  to  the  rights  of  the  crown(r2). — We 
have  seen  that  not  only  the  design  and  object,  but  the  char- 
ter itself  of  the  institution  declares  it  to  be  "for  the  benefit 
of  the  province." 

The  state  of  New-Hampshire  then  is  the  founder. — The 

state  of  New-Hampshire    is    the    power   creating,   and  the 

state  of   New-Hampshire    the  only  party    in  interest.     All 

parties  to  the   contract  then,    have  assented  to  these  altera 

(7i)  0  Cranch  Rep.  43. 


200  DARTMOUTH  COLLEGE  VS.  WOODWARD. 

(ions  by  (he  legislature,  the  representatives  of  the  people 
and  State  of  New-Hampshire. 

A.s  much  importance  has  been  given  to  that  point,  by  an 
effort  to  shew  that  this  is  a  private  institution  and  that  an 
individual  a*  founder  is  party  to  some  contract  here,  per- 
mit me  a  moment  to  direct  the  attention  of  the  court  to  the 
fair  result  from  that  view  of  the  subject.  No  such  pretence 
is  made  for  any  other  individual  than  the  Rev.  Eleazer 
Wheelock.  For  the  purpose  of  giving  their  argument  its 
utmost  force,  let  us  suppose  their  assumed  premises  in  this 
particular  to  be  correct,  that  this  is  a  private  institution,  Dr. 
E.  Wheelock  the  founder,  and  he  a  party  to  a  contract  with 
the  state  that  no  alteration  should  ever  be  made  in  any  of 
the  provisions  of  the  charter,  but  by  consent  of  the  lawful 
visitor. 

"  The  power  of  visitation  exists  in  the  founder  and  his 
heirs,  which  power  they  may  grant  and  assign  over  tooth- 
ers," &c.(73).  In  the  last  will  of  Dr.  E.  Wheelock  after  ap- 
pointing Dr.  John  Wheelock  his  successor  in  the  office  of 
President,  is  the  following  clause ; — "  and  to  him  I  give 
and  grant  all  my  right,  title  and  claim  to  said  seminary  and 
all  the  appurtenances,  interests,  jurisdiction,  power  and  au- 
thority in  and  over  the  same  belonging  to  me,  &c. — It  is 
well  known  that  by  virtue  of  this  appointment,  which  Dr.  E. 
Wheelock  by  the  same  charter  was  authorized  to  make,  the 
late  Dr.  John  Wheelock  entered  upon  and  executed  the  du- 
ties of  the  office  of  president  more  than  thirty  years. — Here 
then  was  the  legalrepresentative  of  the  person,  who  the  plain- 
tiffs say  was  founder.  And  does  he  or  his  heirs  complain  of 
the  legislature  impairing  the  obligation  of  any  contract  with 
him,  or  those  whose  interests  he  represents?  These  very 
acts  were  passed  by  his  solicitation  and  shewing  to  the 
legislature  their  necessity.  He  has  accepted  and  holden  the 
office  of  president  of  the  institution  by  request  of  the  board 
as  organized  by  these  acts.       He  has   even  made  a  bequest 

rrS1)  2  Bro.  Civ.  Law  156. 


SUPERIOR  COURr,  NEW-HAMPSHIRE  201 

to  the  corporation  to  be  bolden  on  the  condition  of  the  en- 
forcement and  continuation  of  these  acts. — Where  then  are 
the  complaints  of  violated  contracts  from  any  private 
founder  ? 

We  have  chosen  to  consider  this  question  upon  the  true 
ground  of  the  publickcharacterof  the  inslitution,because  we 
are  unwilling  to  surrender  it  to  the  dictation  and  controu!  of 
any  individuals  and  not  for  the  want  of  a  perfect  defence  in 
this  action  even  upon  the  principle  of  a  private  charity — 
for  so  far  as  it  concerns  the  event  of  this  suit,  we  might 
safely  tender  them  an  election  to  consider  the  institution 
the  one  or  the  other. 

But  however  the  direct  or  express  contracts  may  be,  it 
is  contended  that  these  acts  violate  <jther  collateral  and  im- 
plied agreements.  As  that  incidental  to  this  institution  are 
the  establishments  of  professorships,  &c.  which  may  be  af- 
fected by  alterations  of  the  original  charter — That  they  may 
be  so  affected  and  justly  too  is  certainly  incident  to  their 
nature,  for  of  these  establishments  Sir  William  Blackstone 
observes(74)  "  neither  are  they  eleemosynary  foundations, 
though  stipends  are  annexed  to  particular  magistrates  and 
professors,  any  more  than  other  corporations  where  the  of- 
ficers have  standing  salaries,  for  these  are  rewards  pro  ope- 
ra et  labore,  not  charitable  donations  only,  since  every  sti- 
pend is  preceded  by  service  and  duty  : — they  seem  there- 
fore to  be  merely  civil  corporations." — It  is  stated  too  that 
violence  is  done  by  compelling  the  former  trustees  to  be- 
come members  of  a  corporation  different  in  its  organization 
from  the  one  it  was  contracted  they  should  govern  and  di- 
rect. Now  if  the  government  chose  to  compel  them  so  to 
serve,  there  is  no  doubt  of  the  right  so  to  do  ;  but  no  such 
attempt  is  intended — The  very  nature  and  existence  of  gov- 
ernment in  some  measure  rests  upon  the  principle,  that  the 
state  has  a  right  to  the  services  of  its  citizens— a   principle 

(71)  l  Com.  471. 

27 


*202  DARTMOUTH  COLLEGE  VS.  WOODWARD. 

acknowledged  in  our  constitution  and  expounded  by  a  long 
catalogue  of  legislative  acts.     It  cannot  be  necessary  to  re- 
fer to  the  numerous  laws  compelling  persons  to  serve  in  town 
offices  under  severe  penalties  ;  or  to  the  drafts  of  the  mi- 
litia, by  which  they  may  be  compelled  not  only  to  devote 
their  time  and  services,  but  even  to  expose  their  lives  against 
their  own  consent.     But  the  state  has  no  wish  to  exercise 
that  prerogative  on  this  occasion. — Much  as  the  publick  may 
appreciate  the  plaintiffs'  services  there  is  no  intention    to 
obtain  them  by  compulsion ;  and  if  they  expose  their  lives 
in  any  battles   connected  with  this  question,  they  do  it  as 
volunteers.     As  the  corporation  was  organized  by  the  orig- 
inal charter,  no  one  was  obliged  to  serve  as  trustee,  nor  is  it 
the  case  by    the  late  alteration  in  its  organization.     Should 
the  legislature  think  proper  to  enact  that  the  Superior  Court 
of  Judicature  should  hereafter  consist  or  five  or  seven  judg- 
es instead  of  three,  it  is  not  believed   that  the  judges  would 
pretend  they  were  compelled  to   continue  members  of  the 
court,  or  that  any  contract  was  violated  by  adding  to  the 
number.     Had  they    any  object  of  personal  prejudice  or 
favouritism  to  gratify  in  the  trial  of  causes,  they  might  com- 
plain that  their  privilege  in   that  respect  was  curtailed,  by 
the  diminution  of  their  power  individually,  although  no  pow- 
ers were  taken  from   the  court,  but  it   probably  would  not 
have  occurred  to  them  to  resist  the  acts  of  the  legislature  on 
the  oround  that    their  appointment  implied  a  contract  that 
none  others  should  ever  be  added   to    the  bench.     And  if 
their  only  object  was  the  fair  distribution  of  justice  the  dim- 
inution of  their  individual  power  could  be  no  cause  of  com- 
plaint. 

Should  it  however  be  found  that  those  trustees  or  any 
other  individuals  were  holding  privileges  or  offices  under 
the  letters  patent  creating  this  corporation,  which  by  any 
possibility  could  be  cousidered  in  the  nature  of  contraband 
that  those  individuals  in  these  alterations  have  not  consent- 


SUPERIOR  COURT,  NEW-HAMPSHIRE.  203 

ed  by  themselves  or  their  representatives  ; — Still  we  contend 
that  in  the  origin  of  such  contract  there  must  have  been  re- 
served to  the  commonwealth  the   implied  condition  of  alter- 
ing, amending,  or  even   revoking  it  altogether,   when  in  the 
opinion  of  the  commonweath  its  welfare  should  require  it. — 
For  if  any  personal  rights  or  privileges  have  accrued  to   in- 
dividuals from    the    establishment   of  this   institution,  they 
must  have  been  incidental  to  the  main  design  and  not  the  ob- 
ject of  its  creation.  And  if  the  object  for  which  it  was  erect- 
ed requires  amendment  in  its  organization,  then   the   collat- 
eral or  accidental   advantages  which  a  few  individuals  may 
possess  by  its  present  arrangement  cannot  be  placed  above, 
but  must  yield  to  the  publick  object  of  the  institution. — And 
this  the  constitution  not  only  does  not  deny,    but  expressly 
authorizes,  and   in  those   same  articles  referred  to  by  Iheir 
counsel.     A  prohibition  of  the  exercise  of   certain  powers, 
except  by  the  legislature  we  do  not  with   the   plaintiffs  un- 
derstand to  be  a  denial  of  the  right  to  that  branch  of  govern- 
ment.    And  in  the  very  case  of  Terrett  vs.  Taylor  which 
the  counsel  have  referred  to,  we  find  the  unequivocal  opin- 
ion of  the  supreme  court  of  the  United  States,  that  the  le- 
gislature may  rightly  exercise    the  power   we  contend   for. 
lt  With  respect  also  to  publick  corporations"  (said  the  judge 
who   delivered    the  opinion)  "  the   legislature  may  have  a 
right  to  change,    modify,  enlarge,  or  restrain  them,  &c." — 
Where  the  question  was  upon  this  article  of  the  constitution, 
the  learned  judge  observed  that  "  some  of  the  most  neces- 
sary   and  important    acts    of    legislation  on    the  contrary 
are  founded  upon  the  principle  that  private  rights  must  yield 
to  publick  exigencies" — Without  the  possession  of  this  pow- 
er the  operations  of  government  would  often  be   obstructed 
and  society  itself  endangered,     it  i.<  not   sufficient   to  urge 
that  the  power  may  be  abided,  for  such  is    the  nature  of  all 
power — such  is  the    tendency  of  every   human    institution., 
and  it  might  as  fairly  bo   said    that  (he  power   <•!    taxation. 


194  DARTMOUTH  COLLEGE  VS.  WOODWARD. 

which  is  only  circumscribed    by  the  discretion   of  the    bo- 
dy by  which  it  is  vested, ought  not  to  be  granted (75)." 

Agreeably  to  the  principle  we  contend  for,  has  been  the 
whole  course  of  legislation  and  the  continued  series  of  ju- 
dicial decisions  from  the  adoption  of  our  constitution  ;  and 
in  cases  too  where  the  privileges  of  individuals  were  much 
more  like  vested  rights  than  any  that  are  approached  by 
these  statutes.  In  the  alteration  of  counties  and  towns,  in- 
stances of  which  occur  at  every  session  of  the  legislature, 
those  corporations  have  been  subjected  to  new  duties,  re- 
ceived addition,  or  been  compelled  to  part  with  territory 
over  which  they  had  controul,  and  officers  living  in  sections 
so  cut  off,  have  not  only  been  deprived  of  their  offices,  but 
rendered  incapable  of  re-election.  Those  corporations  and 
those  officers  not  being  created  for  the  accommodation  of  the 
incumbents, but  for  the  benefit  of  the  community,  they  yield 
to  such  changes  as  the  legislature  deem  that  the  publick 
good  requires.  So  the  immunity  secured  by  the  law  of  ex- 
emption from  military  duty  is  subject  to  the  repeal  of  the 
law  (76).  As  also  the  grant  of  exemption  from  taxes,  as  in 
the  case  of  poll  taxes  on  ministers,  &c.(77).  So  penalties 
incurred  under  existing  laws,  by  the  repeal  of  those  laws, 
even  after  the  action  commenced,  the  plaintiff  is  defeated 
and  deprived  of  the  right  which  had  accrued  to  him (7 8). 
Banks  though  for  private  purposes,  from  their  connexion 
and  influence  in  the  publick  weal,  have  been  subjected  a- 
gainst  their  will  to  legislative  interference. — As  banks  incor- 
porated subject  to  pay  six  per  cent,  only  on  debts,  were 
made  by  statute  liable  to  pay  twenty-four  per  cent,  addition- 
al interest  in  certain  cases  in  suits  on  the  contracts  them- 
selves^).    In  1734,  the  Massachusetts  bank  was  incorpo- 

(75)  5  Dal.  Rep.  400. 

(76)  12  .Mass.  Rep.  445. 

(77)  X.  H.  Stat.  June  181C. 

{78)  6  Mass.  Rep.  307— 9.— 2  Do.  125.— 9  Do.  363.  1»3.— 8  Do.471     2. 

Gall.  Rep. 
'79)  8  Mass.  Rep.  445.— 12  Mass.  Rep.  252. 


SUPERIOR  COURT,  NEW-HAMPSHIRE.  205 

rated  without  limitation  of  time,  and  in  1811,  while  the  cor- 
poration were  contending  with  all  their  force  against  the 
change,  the  legislature  altered  and  abridged  the  charter  s.-> 
that  the  grant  should  extend  only  for  a  limited  period.  The 
legislature  as  the  representative  of  the  publick  may  discon- 
tinue a  highway  whatever  right  a  town  may  have  in  it  (BO). 
So  the  law  authorizing  minors  and  indented  apprentices  to 
enlist  and  receive  their  wages  without  the  consent  of  their 
masters,  has  been  decided  not  to  impair  the  obligation  of 
contracts  in  the  sense  of  the  constitutional). 

School  districts  which  have  certain  corporate  powers,  the 
legislature  have  not  only  altered  at  their  pleasure,  but  have 
even  subjected  them  to  the  alterations  of  towns.  Select- 
men, in  whose  hands  money  is  placed  by  towns  for  the  sup- 
port of  schools,  probably  would  not  have  thought,  before  the 
action,  of  resorting  to  the  United  States  constitution  for  pro- 
tection against  the  legislature,  should  they  have  enacted  that 
a  committee  be  joined  to  the  selectmen  in  the  charge  of  such 
appropriations.  The  plaintiffs  perhaps  may  admit  that  such 
a  legislative  act  could  be  supported — but  that  such  concerns 
are  too  unimportant  to  be  cited  to  a  case  like  the  present. — 
May  we  not  ask  what  interest  the  plaintiffs  have  in  the  funds 
of  this  institution,  that  selectmen  have  not  in  the  funds  of  a 
school  district  ?  What  right  or  pretence  have  the  legislature 
to  interfere  with  the  concerns  of  a  school  district,  but  upon 
the  principle  of  their  vital  importance  to  the  publick  wel- 
fare ?  And  are  those  subordinate  means  thus  important 
and  the  superior  agency  of  this  institution  indifferent  to  the 
community  ? 

While  these  acts  of  the  legislature  are  justified  by  princi- 
ple and  precedent,  I  rejoice  also  that  the  most  distinguished 
literary  institution  of  the  union,  by  its  eminence  and  pros- 
perity is   a   striking  example  of  the  salutary  influence   of 

(SO)  2  Mass.  Rep.  Hfi. 

r  81 )  l'l  Mass.  Rep.    3S9,  anil  Justice  Story's  opinion  U.S.  vs.  13  si  n  bridge, 
Cir.  Co.  Muss.  May  term  181ft. 


•206  DARTMOUTH  COLLEGE  VS.  WOODWARJ). 

these  principles  and  precedents.  The  renowned  university 
of  Harvard,  which  has  ever  been  subject  to  legislative  con- 
troul,  exhibits  an  illustrious  , proof,  that  the  gloomy  appre- 
hensions of  the  plaintiffs  in  the  present  case,  are  altogether 
imaginary.  To  say  that  such  seminaries  would  be  in  dan- 
ger from  a  design  in  the  legislature  to  defeat  their  object  or 
effect  their  destruction,  is  to  suppose  an  event  that  can  nev- 
er take  place  till  the  whole  community  shall  have  degenerat- 
ed to  that  state  of  barbarism,  when  the  light  of  such  an  insti- 
tution could  do  no  more  than  to  make  "darkness  visible  ;" 
and  its  existence  serve  no  other  purpose  than  as  a  monument 
upon  the  ruins  of  all  our  other  civil  establishments. 

Its  dangers  are  from  a  very  different  source. — To  avert 
those  dangers,  these  legislative  acts  have  been  passed. — 
Soon  may  the  opposition  to  them  be  disarmed  by  judicial 
decision,  and  Dartmouth  arise  redeemed  from  the  ruin  which 
has  been  threatened  by  an  effort  to  convert  to  private  and 
personal  interests,  its  publick  nature  and  design. 


[Mr.  Webster  closed  the  argument  by  a  reply  on  the 
part  of  the  plaintiffs;  but  as  his  views  of  the  case  are  more 
fully  disclosed  in  his  argument  before  the  Supreme  Court 
of  the  United  States,  it  is  here  omitted.] 


Afterwards  at  the  November  term  in  Grafton  county, 
present  all  the  judges,  the  opinion  of  the  court  was  deliver 
edby 

IMr.  C.  J.  Richardson.     This  cause,  which  is  trover 

;;    undry  articles  alleged  to  be  the  property  of  the  plaint- 

:onies  before   the  court   upon   a  statement  of  facts,  in 

h  't  is  agreed  by  the  parties  that  the  trustees  of  Dart- 

-ourh  College  were  a  body  corporate  duly  organized  under 

a  charter  bearing  date  December  13,  1769  ;  that  the  sever 

z\  articles,  mentioned  in  the  writ,  were  the  property  of  that 


SUPERIOR  COURT,  NEW-HAIVTPSHIRE .  207 

body  corporate,  and  that  before  the  commencement  of  this 
action  the  said  articles  being  in  the  possession  of  the  de- 
fendant, he  refused,  although  duly  requested,  to  deliver 
them  to  the  plaintiffs.  Upon  these  facts  it  is  clear,  that 
judgment  must  be  rendered  for  the  plaintiffs,  unless  the 
facts,  upon  which  the  defendant  relies,  constitute  a  legal  de- 
fence 

By  an  act  of  this  slate  passed  June  2T,  1816,  entitled 
"  An  act  to  amend  the  charter  and  enlarge  and  improve 
"  the  corporation  of  Dartmouth  College,"  it  is  among  other 
things  enacted  "  that  the  corporation  heretofore  called  and 
il  known  by  the  name  of  the  Trustees  of  Dartmouth  College 
"  shall  ever  hereafter  be  called  and  known  by  the  name  of 
"  the  Trustees  of  Dartmouth  University,  and  the  whole 
**  number  of  said  trustees  shall  be  twenty-one,  a  majority  of 
Ci  whom  shall  form  a  quorum  for  the  transaction  of  business, 
"  and  they  and  their  successors  in  that  capacity  as  hereby 
"  constituted,  shall  respectively  forever  have,  hold,  use,  ex- 
"  ercise  and  enjoy  all  tiie  powers,  authorities,  rights,  piop- 
"  erty,  liberties,  privileges  and  immunities  which  have  hith- 
-<erto  been  possessed,  enjoyed  and  used  by  the  trustees  of 
"  Dartmouth  College." — "  And  the  governor  and  council 
"  shall  by  appointment  as  soon  as  may  be,  complete  the 
;'  present  board  of  trustees  to  the  number  of  twenty-one  as 
•(  provided  for  by  this  act,  and  shall  have  power  also  to  fill 
"  all  vacancies  that  may  occur  previous  to,  or  during  the 
■'  first  meeting  of  said  board  of  trustees."  By  an  act  of  this 
State  passed  Dec.  18,  1816,  entitled  "An  act  in  addition 
"  to  and  in  amendment  of  an  act  entitled  an  act  to  amend 
:'  the  charter,  &,c."  it  is  declared  "  that  the  governor  with 
"  advice  of  council  is  "  authorised  lo  fill  ail  vacancies  that 
44  have  happened,  or  may  happen  in  the  board  of  said  trus 
"  tees  previous  to  their  ne\t  annual  meeting." 

It  is  agreed  by  the  parties,  that    in  pursuance  of  the   pro 
vicious  of  these  acts,  the  governor  and  council   "  completed 


208  DARTMOUTH  COLLEGE  VS.  WOOBWAM). 

"  (be  said  board  of  trustees  to  the  number  of  twenty-one,'* 
by  appointing  nine  new  trustees,  who  accepted  the  trust; 
and  that  previous  to  the  commencement  of  this  action,  at  a 
meeting  of  the  trustees  of  Dartmouth  University  held  as  the 
law  requires,  and  composed  of  two  of  the  former  trustees  of 
Dartmouth  College  and  the  nine  new  trustees  appointed  as 
aforesaid,  being  a  sufficient  number  to  constitute  a  quorum 
of  the  whole  board  of  twenty-one,  the  defendant  was  duly 
appointed  treasurer  and  secretary  of  the  trustees  of  Dart- 
mouth University  ;  and  the  articles  mentioned  in  the  plaint- 
iffs' writ  duly  committed  to  his  custody  as  the  property  of 
the  University. 

It  it  also  agreed,  that  nine  of  the  old  trustees  of  Dartmouth 
College  have  individually  and  as  far  as  by  law  they  could, 
as  a  corporation,  refused  to  accept  the  provisions  of  the 
acts  of  June  27,  and  Dec  18,  1816,  and  still  claim  to  be  a 
corporation  as  constituted  by  the  charter  of  1769,  and  to 
have  the  same  controul  over  the  property  which  belonged 
to  the  College,  as  they  had  before  these  acts  were  passed. 
And  this  action  is  brought  to  enforce  that  claim.  If  those 
parts  of  the  acts  above  mentioned,  which  authorize  the  ap- 
pointment of  new  trustees,  are  valid  and  binding  upon  the 
trustees  of  Dartmouth  College,  without  their  consent,  this 
action  cannot  be  maintained  :  because  in  that  case  the  cor- 
poration must  now  be  considered  as  composed  of  twenty- 
one  members,  and  any  claim  of  a  minority  of  the  corporation 
to  controul  the  affair3  of  the  Institution  in  opposition  to  the 
majority  is  clearly  without  any  legal  foundation.  But  if  on 
the  other  hand  those  acts  are  to  be  considered  in  that  re- 
spect as  unconstitutional  and  void,  then  the  appointment  and 
all  the  doings  of  the  new  trustees  are  invalid  ;  the  corpora- 
linn  remains  as  constituted  by  the  charter  of  1769  ;  and  the 
plaint  ills  must  prevail  in  this  action.  The  decision  of  the 
cause  must  therefore  depend  upon  the  question, whether  the 
legislature  had  a  constitutional  right  io  authorize  the  appoint- 


SUPERIOR  COURT,  NEW-HAMPSHIRE.  209 

rnent  of  new  trustees,  without  the  consent  of  the   corpora- 
tion 1 

This  cause  has  been  argued  on  both  sides  with  uncom- 
mon learning  and  ability,  and  we  have  witnessed  with  pleas- 
ure and  with  pride  a  display  of  talents  and  eloquence  upon 
this  occasion  in  the  highest  degree  honourable  to  the  pro- 
fession of  the  law  in  this  state.  If  the  counsel  of  the  plaint- 
iffs have  failed  to  convince  us  that  the  action  can  be  main- 
lined, it  lias  not  been  owing  to  any  want  of  diligence  in 
research,  or  ingenuity  in  reasoning,  but  to  a  want  of  solid  and 
substantial  grounds  on  which  to  rest  their  arguments. 

A  complaint  that  private  rights  protected  by  the  consti- 
ution  have  been  invaded,  will  at  all  times  deserve  and  re- 
ceive the  most  deliberate  consideration  of  this  court.  The 
cause  of  an  individual  whose  rights  have  been  infringed  by 
the  legislature  in  violation  of  the  constitution,  becomes  at 
once  the  cause  of  all.  For  if  a  private  right  be  thus  infring- 
ed to-day,  and  that  infringement  be  sanctioned  by  a  judicial 
lecision  to-morrow,  there  will  be  next  day  a  precedent  for 
the  violation  of  the  rights  of  every  man  in  the  community  ; 
ind  so  long  as  that  precedent  is  followed,  the  constitution 
will  be  in  fact  to  a  certain  extent  repealed.  An  unconsti- 
tutional act  must  always  be  presumed  to  have  been  passed 
inadvertently  or  through  misapprehension  ;  and  it  is  equally 
to  be  presumed  that  every  honest  legislator  will  rejoice  when 
such  an  act  is  declared  void, and  the  supremacy  of  the  constitu- 
tion maintained.  Rut  we  must  not  for  a  moment  forget, that  the 
question  submitted  to  our  decision  in  such  cases,  is  always 
one  of  mere  constitutional  right  ; — sitting  here  as  judges,  we 
have  nothing  to  do  with  the  policy  or  expediency  of  the 
acts  of  the  legislature.  The  legislative  power  of  this  state 
extends  to  every  proper  object  of  legislation,  and  is  limited 
onl_y  by  our  constitutions  and  by  the  fundamental  principles 
of  all  government  and  the  unalienable  rights  of  mankind, 
/n  giving  a  construction  however  to  a  doubtful  clause  in  the 


210       DARTMOUTH  COLLEGE  VS.  WOODWARD. 

consti(ution,wc  might  with  propriety  weigh  the  conveniences 
and  inconveniencies  which  would  result  from  a  particular  con- 
struction, because  in  such  a  case  arguments  drawn  from  those 
sources  might  have  a  tendency  to  shew  the  probable  inten 
tion  of  the  makers  of  the  constitution.  But  when  the  constitu- 
tional right  to  pass  a  law  is  clear,  the  question  of  expediency 
belongs  exclusively  to  the  legislature.  Nor  is  an  act  in  any 
case  to  be  presumed  to  be  contrary  to  the  constitution.  The 
opposition  between  that  instrument  and  the  act  should  be 
such  as  to  produce  upon  our  minds  a  clear  and  strong  con- 
viction of  their  incompatibility  with  each  other,  before  we 
pronounce  the  act  void.  A  decent  respect  for  the  other  branch- 
es of  the  government,  ought  to  induce  us  to  weigh  well  the 
reasons,  upon  which  we  found  our  opinions  upon  questions 
of  this  kind,  and  not  to  refuse  to  execute  a  law,  till  we  are  able 
to  vindicate  our  judgment  by  sound  and  unanswerable  argu- 
ments.For  if  we  refuse  to  execute  an  act  warranted  by  the  con- 
stitution, our  decision  in  effect  alters  that  instrument,  and  im- 
poses new  restraints  upon  the  legislative  power,  which  the 
people  never  intended.  On  the  other  hand,  if  clearly  con- 
vinced that  an  act  of  the  legislature  is  unconstitutional,  we 
should  be  unworthy  of  the  station  in  which  we  are  placed, 
if  we  shrunk  from  the  duties  which  that  station  imposes. 

In  order  to  determine  the  question  submitted  to  us,  it 
seems  necessary  in  the  first  place  to  ascertain  the  nature  of 
corporations. — A  corporation  aggregate  is  a  collection  of 
many  individuals  united  into  one  body  under  a  special  name, 
having  perpetual  succession  under  an  artificial  form,  and 
vested  by  the  policy  of  the  law  with  the  capacity  of  acting 
in  several  respects  as  an  individual,  and  having  collectively 
certain  faculties,  which  the  individuals  have  not.  A  cor- 
poration considered  as  a  faculfy,  is  an  artificial,  invisible  bo- 
dy, existing  only  in  contemplation  of  law  :  and  can  neither 
employ  its  franchises  nor  hold  its  property,  for  its  own 
benefit.       In    another   view,    a  corporation  may   be    con- 


SUPERIOR  COURT,  NEW-HAMPSHIRE.  211 

sidered  as  a  body  of  individuals  having  collectively  particu- 
lar faculties  and  capacities  which  Ihey  can  employ  for  their 
own  benefit,  or  for  the  benefit  of  others,  according  to  the 
purposes  for  which  their  particular  faculties  and  capacities 
were  bestowed.  In  either  view  it  is  apparent,  that  all  bene- 
ficial interests  both  in  the  franchises  and  the  property  of 
corporations,  must  be  considered  as  vested  in  natural  per- 
sons, either  in  the  people  at  large,  or  in  individuals ; 
and  that  with  respect  to  this  interest,  corporations  may  be 
divided  into  publick  and  private. 

Private  corporations  are  those  which  are  created  for  the 
immediate    benefit   and  advantage  of  individuals,  and  their 
franchises  may  be  considered   as   privileges  conferred  on  a 
number  of  individuals,  to  be  exercised  and  enjoyed  by  them 
in  the  form  of  a  corporation.     These  privileges  may  be  giv- 
en to  the  corporators  for  their  own  benefit,  or  for  the  benefit 
of  other  individuals.     Jn  either  case  the  corporation  must  be 
viewed  in  relation  to  the  franchises  as  a  trustee,  and  each  of 
those,  who  are  beneficially   interested  in  them,  as  a  cestui 
que  trust.     The  property  of  this  kind  of  corporations   and 
the  profits  arising  from   the  employment  of  their  property 
and  the  exercise  of  their  franchises,  in   fact  belongs  to  indi- 
viduals.    To  this  class  belong  all  the  companies  incorporat- 
ed in  this  stale,  for  the  purpose  of  making  canals,  turnpike 
roads  and  bridges  ;  al^o  banking,  insurance  and  manufactur- 
ing companies,  and  many  others.     Both   the  franchises  and 
the  property  of  these  corporations  exist    collectively  in   all 
the  individuals  of  whom  they   are  composed  ;  not  however 
03  natural  persons,  but  as  a  body   politick,    while  the  benefi- 
cial interest  in  both  is  vested  severally  in   the  several  mem- 
bers, according  to  their  respective  shares.      This  interest  of 
each  individual  is    a   part  of  his  property.      It   may   be  sold 
and  transferred,  may,  in  many  case1*,  be   ■cizod  and  sold  up 


212  DARTMOUTH  COLLEGK  VS.  WOODWARD. 

on  a  fieri  facias,  and  is  assets  in  the  hands  of  his  administra- 
tor. This  is  by  no  means  a  new  view  of  this  subject.  The 
supreme  court  of  Massachusetts  in  the  case  of  Gray  vs.  The 
Portland  Bank(l),  most  evidently  viewed  corporations  of 
this  kind  in  the  same  light.  In  the  case  of  the  Bank  of  the 
United  States  vs.  Devaux(2),  the  supreme  court  of  the 
United  States  decided,  that  in  determining  a  question  of  ju- 
risdiction depending  upon  the  citizenship  of  the  parties,  and 
a  corporation  being  a  party,  they  could  look  to  the  citizen- 
ship of  the  individual  corporators  as  of  the  real  litigants. 
The  rejection  of  a  corporator  as  a  witness,  in  cases  where 
the  corporation  is  a  party,  on  the  ground  of  private  interest 
is  a  matler  of  familiar  practice  in  all  our  courts. 

Publick  corporations  are  those,  which  are  created  for  pub- 
lick  purposes,  and  whose  property  is  devoted  to  the  objects 
for  which  they  are  created.  The  corporators  have  no  pri- 
vate beneficial  interest,  either  in  their  franchises  or  their 
property.  The  only  private  right  which  individuals  can 
have  in  them,  is  the  right  of  being,  and  of  acting  as  members. 
Every  other  right  and  interest  attached  to  them  can  only  be 
enjoyed  by  individuals  like  the  common  privileges  of  free 
citizens,  and  the  common  interest,  which  all  have  in  the  prop- 
erty belonging  to  the  state.  Counties,  towns,  parishes,  &c 
considered  as  corporations,  clearly  fall  within  this  descrip- 
tion. A  corporation,  all  of  whose  franchises  are  exercised 
for  publick  purposes,  is  a  publick  corporation.  Thus  if  the 
legislature  should  incorporate  a  number  of  individuals,  for 
the  purpose  of  making  a  canal,  and  should  reserve  all  the 
profits  arising  from  it  to  the  state,  though  all  the  funds  might 
be  given  to  the  corporation  by  individuals,  it  would  in  fact 
be  a  publick  corporation.  So  if  the  state  should  purchase 
all  the  shares  in  one  of  our  banking  companies,  it  would  im- 

(1)  3  Mass.  Rep.  379. 

(2)  5Craneh6J. 


SUPERIOR  COURT,  NEW-HAMPSHIRE.  '2Vo 

mediate! y  become  a  publick  corporation.  Because  in  both 
cases  all  the  property  and  franchises  of  the  corporations 
would  in  fact  be  publick  property.  A  gift  to  a  cor- 
poration created  for  publick  purposes  is  in  reality  a  gift 
to  the  publick.  On  the  other  hand,  if  the  legislature 
should  incorporate  a  banking  company  for  the  benefit 
of  the  corporators,  and  should  give  !the  corporation  all 
the  necessary  funds,  it  would  be  a  private  corporation. 
Because  a  gift  to  such  a  corporation  would  be  only  a 
gift  to  the  corporators.  So,  should  the  state  purchase  a 
part  of  the  shares  in  one  of  our  banks,  it  would  still  remain 
a  private  corporation  so  far  as  individuals  retained  a  private 
interest  in  it.  Thus  it  seems,  that  whether  a  corporation  is 
to  be  considered  as  publick  or  private,  depends  upon  the 
objects  for  which  its  franchises  are  to  be  exercised  ;  and 
that  as  a  corporation  possesses  franchises  and  property  only 
to  enable  it  to  answer  the  purposes  of  its  creation — a  gift  to 
a  corporation  is  in  truth  a  gift,  to  those  who  are  interested  in 
those  purposes. 

Whether  an  incorporated  college,  founded  and  endowed 
by  an  individual, who  had  reserved  to  himself  acontroul  over 
its  affairs  as  a  private  visitor,  must  be  viewed  as  a  publick  or 
as  a  private  corporation,  it  is  not  necessary  now  to  decide, 
because  it  does  not  appear  that  Dartmouth  College  was  sub- 
ject to  any  private  visitation  whatever. 

Upon  looking  into  the  charter  of  Dartmouth  College  w< 
find  that  the  king  "  being  willing  to  encourage  the  laudable 
'*  and  charitable  design  of  spreading  christian  knowledge  a 
"  mong  the  savages  of  our  American  wilderness,  and  also 
"  that  the  best  means  of  education  be  established  in  the  pri - 
"  vince  of  New-Hampshire,  for  the  benefit  of  said  pio- 
"  vince"  ordained  that  there  should  be  a  college  created  in 
said  province  by  the  name  of  Dartmouth  College,  ,;  for  the 
"  education  and  instruction  of  youth  of  the  Indian  tribes,  in 
"  this  land,  in  reading,  writing  and  all  parts  of  learning,  whirl; 


'-214  DARTMOUTH  COLLEGE  VS.  WOODWARD. 

'*  should'appear  necessary  and  expedient  for  civilizing  and 
"  christianizing  children  of  Pagans, as  well  as  in  all  liberal  arts 
"  and  sciences,  and  also  of  English  youth  and  any  others  ;" 
and  iha!  there  should  be  in  the  »aid  Dartmouth  College  from 
thenceforth  and  forever,  a  body  politick,  consisting  of  trus- 
tees of  Dartmouth  College.     He   then  "  made,   ordained, 
constituted  and  appointed"  twelve  individuals  to  be  trustees 
of  the  College,  and  declared  that  they  and  their  successors, 
should  forever  thereafter  be  a  body  corporate,  by  the  name 
of  the  trustees  of  Dartmouth  College  ;  and  that  said  corpo* 
ration  should  be  "  able,  and  in  law   capable  for    the  use  of 
"  said  college,  to    have,    get,   acquire,    purchase,  receive, 
"  hold,  possess  and  enjoy  tenements,  hereditaments,  juris- 
"  dictions  and  franchises,  for  themselves  and  their  success- 
"  ors,  in  fee  simple  or  otherwise  ;" — and  "  to  receive  and 
11  dispose  of  any  lands,  goods,  chattels  and  other  things  of 
"  what  nature  sover,/or  theuse  aforesaid  ;j\nd  also  to  have, 
"  accept  and  receive  any  rents,  profits,  annuities,  gifts,  leg- 
"  acies,  donations  or  bequests  of  any  kind  whatsoever,  for 
"  the  use  aforesaid."     Such  are  the  objects,  and  such  the 
nature  of  this  corporation,  appearing  upon  the  face  of  the 
charter.     It  was  created  for  the  purpose  of  holding  and  man- 
aging property  for  theuse  of  the   college  ;  and    the  college 
was  founded  for  the  purpose  of  "  spreading   the   knowledge 
"  of  the  great  Redeemer"  among  the  savages  and  of  furnish- 
ing "  the  best  means  of  education"  to  the  province  of  New- 
Hampshire.     These  great  purposes  are  surely,  if  any  thing 
can  be,  matters  of  publick  concern.     Who  has  any  private 
interest  either  in  the  objects  or  the  property  of  this  institu- 
tion ?  The  trustees  themselves  have   no    greater  interest  in 
Ihc  spreading  of  christian  knowledge  among  the  Indians,  and 
n  _    oviding  the  best  means  of  education,  than  any  other  in- 
.i  viduais  in  the  community.     Nor  have  they  any  private  in- 
terest in  the  property  of  this  institution, — nothing  that  can 
be  sold  o:  transferred,  that  can  descend  to  (heir  heirs,  or  can 


SUPERIOR  COURT,  NEW-HAMPSHIRE.  215 

be  assets  in  the  hands  of  their  administrators.  Kail  the 
property  of  the  institution  were  destroyed,  the  loss  would 
■be  exclusively  publick,  and  no  private  loss  to  them.  So  en- 
tirely free  are  they  from  any  private  interest  in  this  respect, 
that  they  are  competent  witnesses  in  causes  where  the  cor- 
poration is  a  party,  and  the  property  of  the  corporation  In 
contest.  There  is  in  Peake's  cases  at  Nisi  Prius,  154,  an 
authority  direct  to  this  point.  It  is  the  case  of  Weller 
against  the  governors  of  the  Foundling  Hospital,  and  was 
assumpsit  for  work  and  labour.  Most  of  the  witnesses  call- 
ed on  behalf  of  the  defendants,  were  governors  and  mem- 
bers of  the  corporation.  Lord  Kenyon  was  of  opinion  that 
they  were  nevertheless  good  witnesses,  because  they  were 
mere  trustees  of  a  publick  charity,  and  had  not  the  least 
personal  interest.  The  office  of  trustee  of  Dartmouth  Col- 
lege is,  in  fact,  a  publick  trust,  as  much  so  as  the  office  of 
governor,  or  of  judge  of  this  court  ;  and  for  any  breach  of 
trust,  the  State  has  an  unquestionable  right,  through  its 
courts  of  justice  to  call  them  to  an  account.  The  trustees 
have  the  same  interest  in  the  corporate  property,  which  the 
governor  has  in  the  property  of  the  state,  and  which  wc 
have  in  the  fines  we  impose  upon  the  criminals  convicted  be- 
fore this  court.  Nor  is  it  any  private  concern  of  theirs, 
whether  their  powers,  as  corporators,  shall  be  extended  or 
lessened,  any  more  than  it  is  our  private  concern  whether 
the  jurisdiction  of  this  court  shall  be  enlarged  or  diminished. 
They  have  no  private  right  in  the  institution,  except  the 
right  of  office, — the  right  of  being  trustees,  and  of  acting  as 
such.  It  therefore  seems  to  us,  that  if  such  a  corporation 
is  not  to  be  considered  as  a  publick  corporation,  it  would  be 
difficult  to  find  one  that  could  be  so  considered. 

It  becomes  then,  unnecessary  to  decide  in  this  case,  how 
far  the  legislature  possesses  a  constitutional  right  to  inter- 
fere in  the  concerns  of  private  corporations.  It  may  not 
however,  be  improper  to  remark,  that   it  would    be   difficult 


21t>  DARTMOUTH  COLLEGE  1(&  WOODWARD. 

to  find  a  satisfactory  reason  why  the  property  and  iaiuiiim  r 
tics  of  such  corporations  should  not  stand,  in  this  respect 
on  the  same  ground  with  the  property  and  immunities  of  in- 
dividuals. 

In  deciding  a  case  like  this,  where  the  complaint  is  thai 
corporate  rights  have  been  unconstitutionally  infringed,  it 
is  the  duty  of  the  court  to  strip  off  the  forms  and  fictions 
with  which  the  policy  of  the  law  has  clothed  those  rights, 
and  look  beyond  that  intangible  creature  of  the  law,  the  cor- 
poration which  in  form  possesses  them,  to  the  individuals 
and  to  the  publick,  to  whom  in  reality,thcy  belong,  and  who 
alone  can  be  injured  by  a  violation  of  them.  This  action, 
therefore,  though  inform  the  complaint  of  the  corporation, 
must  be  considered  as  in  substance  the  complaint  of  the  trus- 
tees themselves. 

The  acts  in  question  can  only  effect  publick  or  private 
rights  and  interests.  With  regard  to  the  rights  and  interests 
which  the  publick  may  have  in  this  Institution no  pro- 
vision in  the  constitution  of  this  state,  nor  of  the  United 
States,  is  recollected,  which  can  protect  thera  from  legisla- 
tive interference.  We  have  been  referred  to  no  such  pro- 
vision in  the  argument.  The  clauses  in  those  constitutions, 
upon  which  the  plaintiffs'  counsel  have  relied,  were  most 
manifestly,  intended  to  protect  private  rights  only.  All  pub- 
lick interests  are  proper  objects  of  legislation  ;  and  it  is  pe- 
culiarly the  province  of  the  legislature,  to  determine  by  what 
laws  those  interests  shall  be  regulated.  Nor  is  the  expe- 
diency, or  the  policy  of  such  laws,  a  subject  for  judicial  de- 
cision. The  constitution  has  given  to  the  general  court  full 
power  and  authority  to  make  and  ordain  all  such  laws  "  as 
"  tht y  may  judge  for  the  benefit  and  welfare  of  this  state." 
Should  we  assume  the  power  of  declaring  statutes  valid  or 
invalid  ,  according  to  our  opinion  of  their  expediency,  it 
would  not  be  endured  for  a  moment,  but  would  be  justly 
viewed  by  all,  as  a  wanton  usurpation,  altogether  repugnant 


SUPERIOR  COURT,  NEW -HA  MPS  HIRE.  21? 

to  the  principles  of  our  government.  Nor  are  these  plaint- 
iffs competent  to  call  in  question  the  validity  of  these  laws 
in  a  court  of  justice,  on  the  ground  that  they  are  injurious  to 
the  publick  interests.  A  law  is  only  the  publick  will  duly  ex- 
pressed. These  trustees  are  the  servants  of  the  publick, 
and  the  servant  is  not  to  resist  the  will  of  his  master,  in  a 
matter  that  concerns  that  master  alone.  If  these  acts  be 
injurious  to  the  publick  interests,  the  remedy  is  to  be  sought 
in  their  repeal,  not  in  courts  of  law.  But  if  these  acts  infringe 
private  rights,  protected  by  the  constitution,  whether  of  the 
trustees  themselves,  or  of  others,  whose  rights  they,  from 
their  situation  are  competent  to  vindicate,  then  the  plaintiffs 
have  proper  grounds,  upon  which  to  submit  their  validity 
to  our  decision. 

All  private  rights  in  this  institution  must  belong,  either  to 
those  who  founded,  or  whose  bounty  has  endowed  it  ;  to 
the  officers  and  students  of  the  college  ;  or  to  the    trustees. 

As  to  those  who  founded  or  who  have  endowed  it ;  no 
person  of  this  description,  who  claims  any  private  right,  has 
been  pointed  out  or  is  known  to  us.  It  is  not  understood 
that  any  person  claims  to  be  visitor  of  this  college.  An 
absolute  donation  of  land  or  money  to  an  institution  of  this 
kind,  creates  no  private  right  in  it.  Besides,  if  the  private 
rights  of  founders  or  donors  have  been  infringed  by  these 
acts,  it  is  their  business  to  vindicate  their  own  rights.  It  is 
no  concern  of  these  plaintiffs.  When  founders  and  donors 
complain,  it  will  be  our  duty  to  hear  and  decide  ;  but  we 
cannot  adjudicate  upon  their  rights,  till  they  come  judicially 
before  us.  It  has  been  strenuously  urged  to  us,  in  the  ar- 
gument, that  these  acts  will  tend  to  discourage  donations, 
and  are  therefore  impolitick.  Be  it  so.  That  was  a  con- 
sideration very  proper  to  be  weighed  by  those  who  made 
the  acts,  but  is  entitled  io  no  weight  in  this  decision. 

The  officers   and   students  of  the  college  have,  without 
doubt,  private  rights  in  the  institution — rights  which  court* 
2H 


2 1 8  DARTMOUTH  COLLEGE  VS.'  WOODWARD. 

of  justice  are  bound  to  notice — rights,  which,  if  unjustly  in- 
fringed, even  by  the  trustees  themselves,  this  court  upon  a 
proper  application,  would  feel  itself  bound  to  protect.  But 
for  any  injury  done  to  their  rights,they  have  their  own  rem- 
edy. It  would  be  unjust  to  prejudge  their  case  on  this  oc- 
casion. They  are  not  parties  to  this  record,  and  cannot  be 
legally  heard  in  the  discussion  of  this  cause.  If  no  form  of 
action  given  them  by  law  can  be  conceived  ;  it  is  because 
these  acts  do  no  injury  to  their  rights. 

The  real  question  then  is,  do  these  acts  unconstitution- 
ally infringe  any  private  rights  of  these  trustees  ?  It  is 
sard  that  these  acts  in  fact,  attempt  to  dissolve  the  old  corpo- 
ration, to  create  a  new  one,  and  to  transfer  the  property  of 
the  old  corporation  to  the  new ;  and  are  therefore  void  on 
the  principle  decided  in  Territ  &  al.  vs.  Taylor(3).  But 
admitting  this  to  be  the  attempt,  we  might  with  great  pro- 
priety remark,  in  the  language  of  Ashurst  justice,  in  the  case 
of  the  King  against  Pasmore  (4),  that  "the  members  of  the 
"  old  body,  have  no  injury  or  injustice  to  complain  of,  for 
"  Ihey  are  all  included  in  the  new  charter  of  incorporation, 
"  and  if  any  of  them  do  not  become  members  of  the  new  in- 
"  corporation,  but  refuse  to  accept,  it  is  their  own  fault.'r 
But  it  seems  to  us  impossible  to  suppose,  that  the  legislature 
intended  by  these  acts,  to  dissolve  the  old  corporation  or  to 
create  a  new  one :  nor  do  we  conceive  that  the  addition  of 
new  members,  can  in  any  case  be  considered  as  a  dissolution 
of  a  corporation.  The  legislature  of  this  state  have  net  un- 
frequently  annexed  tracts  of  inhabited  territory  to  towns, 
and  thereby  added  new  members  to  the  corporation.  Yet 
who  ever  supposed  that  this  was  a  dissolution  of  the  old, 
and  the  creation  of  a  new  corporation  ?  Our  statute  of  Dec. 
11,  1812(5),  makes  the  shares  and  interest  of  any  person, 
in  any  incorporated  company,  liable  to  be  seized  and  sold  up- 


ffl: 


9  Cranoh  43. 
3  Dm-nford  and  East  244. 
(5)  N-  H.  Laws,  184. 


SUPERIOR  COURT,  NEW-HAMPSHIRE.  21b 

»n  execution,  and  gives  to  the  purchaser  all  the  privileges 
appertaining  thereto ;  and  of  course  makes  him  a  member  of 
the  corporation.  But  the  thought  probably  never  occurred 
to  any  man,  that  when  a  new  member  is  added,  by  virtue  of 
that  act,  the  corporation  is  thereby  dissolved,  and  a  new 
one  created.  Yet  that  act  has  at  least,  as  much  dissolving, 
and  as  much  creating  force,  as  the  acts  now  under  consider- 
ation. 

The  plaintiff*,  in  taking  this  ground,  seem  not  to  have  ad 
verted  to  a  material  distinction,  which,  certainly  exists  be- 
tween the  rights  and  faculties  relating  to  corporations,  which 
can  exist  only  in  the  corporators,  as  natural  persons,  and 
the  corporate  rights  and  faculties,  which  can  exist  only  in 
the  corporation.  The  right  to  the  beneficial  interest  in  the 
corporate  property,  can  only  exist  in  natural  persons.  But 
the  legal  title  and  ownership  in  corporate  property,  can  in  no 
case  be  considered  as  vested  in  the  several  corporators, 
as  natural  persons,  either  jointly  or  severally,  but  col- 
lectively in  all,  as  one  body  politick,  made  capable  by 
the  policy  of  the  law,  of  holding  property  as  an  indi- 
vidual. This  artificial  individual,  which  is  said  to  be 
immortal,  holds  in  all  cases  the  legal  tills.  Hence 
a  corporation  may  maintain  trespass  against  any  of  its  mem- 
bers, who  intermeddle  with  its  property  without  its  consent. 
Hence  too,  the  legal  title  of  a  corporation  in  lands,  will  not 
pass  by  the  deed  of  all  its  members.  This  faculty  of  hold- 
ing property  as  an  individual,  which  the  policy  of  the  law 
vests  in  a  body  of  natural  persons,  that  can  be  perpetuated 
by  known  rules  of  law,  is  one  of  the  great  ends  and  uses  of 
an  incorporation.  But  the  natural  persons  who  compose 
this  artificial,  immortal  individual,  in  which  the  property  is 
vested,  must,  in  the  nature  of  things,  be  continually  fluctua- 
ting and  changing  ;  and  yet  the  artificial  individual  remains 
in  contemplation  of  law  the  «am<:.  It  is  therefore  clear,  that 
the  legal  identity  of  a  corporation  dors  not  doprnd  upon    ifn 


220  DART  MOUTH  COLLEGE  \S.  WOQDWAHD. 

being  composed  of  the  same  natural  persons,  and  that  an  ad- 
dition of  new  members  to  a  corporation,  cannot  in  Itself,  make 
it  a  new  and  different  corporation.  The  immortality  of  a 
corporation  depends  upon  a  continued  accession  of  new  mem- 
bers. The  mode  in  which  this  accession  is  effected,  is  im- 
material. A  few  of  our  corporations  are  perpetuated  by  a 
power  of  electing  new  members,  placed  in  the  corporations 
themselves.  But  most  of  our  publick,  and  all  our  private  cor- 
porations, are  perpetuated  by  mere  operation  of  law,  without 
any  corporate  act  whatever.  Nor,  by  the  addition  of  new 
members,  is  any  part  of  the  legal  title  to  the  corporate  prop- 
erty, transferred  from  the  old  to  the  new  members.  That 
title  remains  unaltered  in  the  corporation.  The  old  mem- 
bers had  not  personally  any  such  title  that  could  be  taken  from 
them  ;  and  the  new  members  have  personally  acquired  none. 
The  error  of  the  plaintiffs  on  this  subject,  probably  originated 
in  their  supposing  that  the  legal  title  to  corporate  property  is 
vested  in  the  corporators,  in  the  same  manner  that  the  title  to 
partnership  property  is  vested  in  co-partners.  Indeed  their 
counsel  endeavored  to  illustrate  thispoint,by  comparing  corpo» 
rate  to  partnership  property.  And  if  the  comparison  had  been 
just,  the  inferences  which  the  counsel  made,  would  also  have 
been  just.  But  the  comparison  does  not  hold,  unless  we  are 
entirely  mistaken  as  to  the  manner  in  which  the  legal  title 
to  corporate  property  is  vested.  The  addition  of  new  mem- 
bers by  a  legislative  act,  even  to  a  private  corporation,  does 
not  necessarilydivest  the  old  corporators,of  any  private  benefi- 
cial interest,which  they  may  individually  have  in  the  corporate 
property.  Suppose  the  legislature  should  enact,  that  the  gov- 
ernor should  be  ex-officio  a  member  of  all  the  banking  cor- 
porations in  the  state.  This  might  give  him  a  personal  in- 
fluence in  the  management  of  their  concerns,  but  would  give 
him  no  beneficial  interest  whatever,  in  the  corporate  prop- 
erty. The  interest  of  the  stock-holders  would  remain  the 
same.     In  the  case  of  corporations,  where  all  the  benefit  de- 


SUPERIOR  COURT,  NEW-HAMPSHIRE.  221 

iived  from  them  consists  in  the  privileges  incident  to  mem- 
bership, as  in  incorporated  library  companies,  it  may  be  oth- 
erwise. But  in  the  property  of  public k  corporations,  there 
is  no  private  beneficial  interests  that  can  be  divested.  We 
are  therefore  of  opinion,  that  these  acts,  if  valid,  do  not  dis- 
solve the  old  corporation,  nor  create  a  new  one;  nor  do  they 
operate  in  such  manner  as  to  change  or  transfer  any  legal 
title,  or  beneficial  interest,  in  the  corporate  property,  but  (he 
legal  title  remains  in  the  corporation,  and  the  beneficial  in- 
terest in  the  publick,  unaffected. 

It  has  also  been  contended,  that  it  depends  altogether 
upon  contract,  whether  the  old  trustees  shall  become  mem- 
bers of  the  corporation  as  now  organized  ;  that  there  can  be 
no  contract  without  consent,  and  that  therefore,  these  acts 
cannot  bind  the  old  trustees  without  their  consent,  and 
must  in  the  nature  of  things,  be  invalid.  The  whole  amount 
of  this  argument  is  this:  a  statute,  which  attempts  to  com- 
pel the  members  of  a  corporation  to  become  members  of 
that  corporation,  differently  organized,  without  their  consent 
is  invalid  ;  and  as  these  acts  make  such  an  attempt,  they 
are  therefore  invalid.  To  this  there  are  two  decisive  an- 
swers. 1.  Neither  of  the  propositions  upon  which  the  con- 
clusion rests  is  true.  2.  Admitting  the  premises  to  be  cor- 
rect, the  legitimate  conclusion  to  be  drawn  from  them,  is 
wholly  irrelevant  to  the  question  in  this  case.  In  the  first 
place,  the  proposition  that  it  depends  altogether  upon 
contract,  whether  individuals  shall  become  members  of 
particular  corporations,  is  not  universally  true  ;  and  so 
far  as  respects  publick  corporations,  is  never  true.  The  le- 
gislature has  a  most  unquestionable  right,  to  compel  individ- 
uals to  become  members  of  publick  corporations.  Titus  when 
a  town  is  incorporated,  all  the  inhabitants  become  members 
of  the  corporation,  and  continue  members  so  long  as  they  reside 
within  its  limits,  whether  they  consent  or  not.     Nor  is  there 


222  DARTMOUTH  COLLEGE  VS.  WOOBWABD. 

any  good  reason  to  doubt  that  the  legislature  possess  thft 
right  to  compel  individuals  to  accept  tbe  office  of  trustees 
of  Dartmouth  College,  however  the  corporation  may  be  or- 
ganized, any  more  than  there  is  to  doubt  the  right  of  the  le- 
gislature to  compel  individuals  to  serve  as  town  officers,  as 
is  done  by  our  statute  of  Feb.  8,  1791(6),  or  to  be  en- 
rolled in  the  militia  and  hazard  their  lives  in  defence 
of  the  state.  It  is  a  fundamental  principle  of  all  gov- 
ernments recognized  in  the  twelfth  article  of  our  bill  of  rights, 
that  a  slate  has  a  right  to  the  personal  service  of  its  citi- 
zens, whenever  the  publick  necessity  requires  it, — and  the 
government  has  a  right  to  judge  of  that  necessity.  There 
is  a  very  strong  case  in  2  Modern  Rep.  299.  The  Attorney 
general  vs.  Sir  John  Read.  It  was  an  information  against 
Read,for  refusing  to  serve  as  high  sheriff  of  Hertfordshire.  His 
defence  was, thai  being  under  sentence  of  excommunication,he 
could  not  receive  the  sacrament:  and  that  by  serving  as  high 
sheriff  without  receiving  it,  he  subjected  himself  to  a  penal- 
ty of  L.500,  but  the  court  held  that  he  waas  punishable  for 
not  removing  the  disability,  it  being  in  his  power  to  get  him- 
self absolved  from  the  excommunication  :  and  gave  judg- 
ment against  him. — Nor  is  the  proposition,  that  these  acts 
attempt  to  compel  the  old  trustees  to  become  members  of 
this  corporation  as  now  organized,  without  their  consent, 
true.  They  are  left  perfectly  at  liberty  to  continue  mem- 
bers of  this  corporation  or  not,  according  to  their  own 
pleasure.  It  is  enacted,  that  the  board  shall  hereafter  con- 
sist of  twenty-one  members  ;  but  it  is  not  enacted  that  they 
shall  continue  members  of  it  against  their  consent.  They 
had,  before  these  acts  were  passed,  a  perfect  right  to  resign 
when  they  pleased  ;  and  that  right  is  not  impaired  by  these 
acts. 

(6)  Laws  2*1. 


SUPERIOR  COVRT,  NBW-HAMPSHIRE  223 

But  in  the  second  place,  admitting  the  premises  to  be  true, 
the  legitimate  conclusion  does  not  bear  upon  the  question  in 
this  case.  The  fair  conclusion  to  be  drawn  from  the  premi- 
ses, is,  that  these  acts,  so  far  as  they  attempt  to  compel  the 
old  members  to  become  members  of  the  corporation,  as  now 
organized,  are  invalid.  But  the  question  here  is  not,  wheth- 
er the  legislature  can  compel  the  old  trustees  to  become 
members  of  the  newly  organized  corporation,  but  whether 
it  has  a  constitutional  right  to  make  a  new  organization 
of  the  corporation,  by  adding  new  members  ?  And 
it  is  very  apparent,  that  although  the  legislature  may 
not  possess  the  power  to  do  the  one,  yet  still  it  may  have  a 
constitutional  right  to  do  the  other.  There  is  a  clear  dis- 
tinction between  laws  binding  corporate  bodies,  and  laws  at- 
tempting to  bind  individuals  to  continue  members  of  corpo- 
rate bodies.  Thus  the  legislature  has  an  undoubted  right, 
at  all  times,  to  pass  laws  binding  the  whole  body  politick  of 
the  state  ;  but  it  is  by  no  means  clear,  that  the  legislature 
has  a.t  all  times  a  right  to  compel  individuals  to  remain  in  the 
Btate,  and  be  subject  to  those  laws.  So  the  legislature  has 
a  right  to  incorporate  towns  ;  but  can  it  compel  the  inhabi- 
tants to  remain  in  them,  and  continue  members  ofsuch  cor- 
porations ? 

But  what  is  such  a  new  organization  of  a  corporation  as 
cannot  be  made,  without  the  consent  of  the  corporators  ? 
If  new  members  cannot  be  added,  can  any  new  duty  be  im- 
posed upon  a  corporation  ;  or  can  the  corporate  powers  and 
faculties  be  in  any  way  limited,  without  such  consent  ?  Our 
•tatute  of  June  21,  1814,  (laws  284)  makes  it  the  duty  of 
the  several  incorporated  banks,  to  make  a  return  of  the  state 
of  their  several  banks,  to  the  governor  and  council,  annually, 
in  June,  under  a  penalty  of  $1000.  If  the  doctrine  of  these 
plaintiffs  be  true,  may  not  the  stockholders  say  that  they  can- 
not be  compelled  to  be  members  of  corporations,  subject  to 
new  and  different   dutiea,   without  their   consent,  and   lh;»t 


224  DARTMOUTH  COLLEGE  VS.  WOODWARD. 

therefore  this  act  is  void  ?  And  may  not  the  same  argument 
he  used  in  regard  to  the  acts  of  June  11,  1803,  and  June  If, 
180T,  which  prohibit  banks  from  issuing  bills  of  a  certain 
description  ?  In  fact,  does  not  this  doctrine  amount  to  a  de- 
nial of  the  right  to  legislate  at  all,  on  the  subject  of  corpora- 
tions, without  their  consent  ? 

But,  although  an  artificial  individual,  capable  of  holding 
the  legal  title  to  property,  may  be  created  by  the  policy  of 
the  law,  and  a  kind  of  artificial  will  and  judgment  as  to  the 
management  of  its  concerns,  given  to  it  by  making  the  con- 
sent of  a  number  of  natural  persons  necessary  in  all  its  acts  ; 
yet  still  this  artificial  will  and  judgment  is,  after  all,  only  the 
private  will  and  judgment  of  natural  persons,  in  some  re- 
spects limited  and  restricted.  In  this  point  of  view,  a  cor- 
poration may  be  considered  as  a  body  of  natural  persons, 
having  power  and  authority  vested  in  them,  to  manage  the 
corporate  concerns  in  such  manner  as  a  majority  of  a  com- 
petent number  of  them  may  judge  and  determine  to  be  best 
calculated  to  answer  the  ends  of  the  incorporation.  And  it 
has  been  truly  said,  by  the  counsel  of  the  plaintiffs,  that  by 
the  charter  of  1769  exclusive  power  and  authority  was  giv- 
en to  the  twelve  trustees  to  manage  the  affairs  of  this  corpo- 
ration in  such  manner  as  a  majority  of  any  seven  or  more  of 
them,  duly  convened  for  the  purpose,  might  judge  most  ex- 
pedient to  answer  the  purposes  of  the  institution  ;  aud  that 
the  right  of  the  twelve,  to  exercise  that  exclusive  power  and 
authority  is  taken  away  by  these  acts,  and  others  admitted 
to  share  that  power  and  authority  with  them.  Such  is, 
without  doubt,  the  operation  of  these  acts;  and  it  seems  to 
us  that  this  is  the  whole  ground  of  complaint,  which  the 
plaintiffs  can  have.  These  acts  compel  the  old  trustees  to 
sacrifice  no  private  interest  whatever,  but  merely  to  admit 
others  to  aid  them,  in  the  management  of  the  concerns  of  a 
publick  institution  :  and  if  they  have  no  private  views  to  ans- 
wer, nor  private  wishes  to  gratify,  in  the  management  of  those 


SUPERIOR  COURT,  NEW-HAMPSHIRE.  225 

concerns,  (and  it  would  be  very  uncharitable  to  suppose 
they  can  have,  for  it  is  extremely  dishonourable  to  prostitute 
publick  interest  to  private  purposes)  it  is  not  very  easy  to 
see  how  this  can  furnish  auy  very  solid  ground  of  complaint. 
Had  the  affairs  and  concerns  of  Dartmouth  College  been  their 
own  private  affairs  and  concerns,  such  an  interference  would 
have  had  a  very  different  complexion. 

But  the  plaintiffs  conlend  that  these  acts  impair  their 
right  to  manage  the  affairs  of  this  institution,  in  violation 
of  that  clause  in  the  fifteenth  article  in  our  bill  of  rights, 
which  declares  that  "  no  subject  shall  be  arrested,  impris- 
"  oned,  despoiled  or  deprived  of  his  property,  immunities, 
"  or  privileges,  put  out  of  the  protection  of  the  law,  exiled 
"  or  deprived  of  his  life,  liberty  or  estate,  but  by  the  judg- 
"  ment  of  his  peers  or  the  law  of  the  land."  That  the 
right  to  manage  the  affairs  of  this  college,  is  a  privilege  with- 
in the  meaning  of  this  clause  of  the  bill  of  rights,  is  not  to  be 
doubted.  But  how  a  privilege  can  be  protected  from  the 
operation  of  a  law  of  the  land,  by  a  clause  in  the  constitu- 
tion declaring  that  it  shall  not  be  taken  away,  but  by  the 
law  of  the  land,  is  not  very  easily  understood.  This  clause 
in  our  bill  of  rights,  seems  to  have  been  taken  from  the  29th 
chapter  of  Magna  Charta.  "  No  freeman  shall  be  taken  or 
"  imprisoned,  or  be  disseized  of  his  freehold,  or  liberties,  or 
"free  customs,  or  be  out-lawed  or  exiled,  or  any  otherwise 
"  destroyed, nor  will  we  pass  upo.i  him  nor  condemn  him,  but 
"  by  lawful  judgment  of  his  peers,  or  by  the  law  of  the  land." 
The  origin  and  history  of  Magna  Charta  is  familiar  to  law- 
yers and  politicians.  Sullivan  in  his  Lectures,  333-4,  says 
that  this  chapter  is  the  corner  stone  of  English  liberties, made 
in  affirmance  of  the  old  common  law  ;  and  that  by  the  bare 
reading  of  it,  we  may  learn  the  extravagancies  of  king  John's 
reign,  which  it  was  intended  to  redress.  It  is  evident,  from 
all  the  commentaries  upon  it  by  English  writers, that  it  was  in- 
tended to  limit  the  powers  of  the  crown,  and  not  of  parlia- 
30 


226  DARTMOUTH  COLLEGE  VS.  WOODWARD. 

ment(r).  Thus  (he  franchises  of  a  corporation  are  protect- 
ed by  this  clause,  in  (he  great  charter,  and  cannot  be  taken 
away  by  the  king,  unless  by  due  process  of  law  in  his  courts 
of  justice  for  a  forfeiture  incurred.  But  parliament  can 
dissolve  a  corporation  by  statute(8).  The  object  of  the 
clause  in  our  bill  of  rights,  now  under  consideration,  seems 
always  to  have  been  understood  in  this  state,  to  be  the  pro- 
tection of  private  rights,  from  all  interference  of  single  bran- 
ches of  the  government,  and  of  individual  magistrates,  not 
warranted  by  law.  Thus  if  the  house  of  representatives 
or  the  senate,  or  the  governour  and  council,  or  even  a  court 
should  order  an  individual  to  be  arrested,  or  his  property 
to  be  seized  in  a  case  not  warranted  by  the  law  of  the  land, 
it  would  be  a  violation  of  this  clause  in  the  bill  of  rights. — 
So  if  an  individual  were  arrested  upon  the  warrant  of  a  jus- 
tice of  the  peace,  the  cause  of  which  had  not  been  previous- 
ly supported  by  oath  or  affirmation,  this  clause  in  the  bill 
of  rights  would  be  violated.  At  this  terra,  in  this  county, 
we  have  decided,  in  the  case  of  Hutchins  vs.  Edson,  that 
an  arrest  upon  an  execution  issuing  from  this  court,  but  not 
under  seal,  which  is  required  both  by  the  constitution  and 
by  statute,  was  a  violation  of  this  clause  in  the  bill  of  rights 
and  altogether  illegal  and  void.  But  all  statutes,  not  repug- 
nant to  any  other  clauses  in  the  constitution,  seem  always 
to  have  been  considered  as  "  the  law  of  the  land,"  within 
the  meaning  of  this  clause.  Thus,  our  statute  of  Decem- 
ber 24,  1799,  authorizes  selectmen  and  tythingmen,  within 
tbeir  respective  precincts,  to  stop  persons  suspected  of 
travelling  unnecessarily  on  the  Sabbath  ;  and  if  no  suffi- 
cient excuse  be  given,  to  detain  them  in  custody,  until  a  tri- 
al can  be  had  ;  and  in  the  case  of  Mayo  vs.  Wilson  and  oth- 
ers, Cheshire,  May  loir,  we  decided,  after  very  mature 
consideration,  that  an  individual  who  had  been  duly  arrested 

(7)  Sullivan's  Lectures  383 — 408.     2  Institute    45.     4  Blackstonc's  Com- 

iticutiiries   423. 
:'<;)  i  ISiuckstouci's  Commentaries  4S5, 


SUPERIOR  COURT,  NEW- HAMPSHIRE.  227 

and  detained  in  pursuance  of  that  statute,  must  be  consider- 
ed as  having  been  deprived  of  his  liberty  "  by  the  law  of 
the  land." 

We  have  publick  statutes,  authorizing  the  selectmen  of 
towns  to  take  the  lands  of  individuals  for  highways,  and 
empowering  firewards  "  to  pull  down,  blow  up  or  remove 
"  any  house  or  buildings,"  when  necessary  to  stop  the  pro- 
gress of  fire.  We  have  private  acts,  giving  to  turnpike 
corporations  authority  to  take  the  land  of  individuals  for 
their  roads.  Under  all  these  statutes,  the  property  of  indi- 
viduals is  often  taken  without  their  consent  ;  and  yet 
it  seems  never  to  have  been  doubted  that  those  statutes 
were  "  the  law  of  the  land,"  within  the  meaning  of  the 
constitution.  By  the  slatufe  of  December  24,  1805,  en- 
titled, "  an  act  respecting  idle  persons,"  judges  of  probate 
are  authorized,  in  certain  cases,  to  appoint  guardians  of  idle 
persons,  and  thereby  take  from  them  all  controul  over  both 
their  real  and  personal  estate.  This  act  has  beeo  in  our 
statute  book  nearly  twelve  years,  as  a  part  of  "  the  law 
"  of  the  land,"  and  no  one  has  ever  called  its  validity  in 
question.  By  an  act  of  December  11,  1804(9),  a  part 
of  the  town  of  Wendell,  in  the  county  of  Cheshire,  is 
annexed  to  the  town  of  jNew-London,  in  the  county  of 
Hillsborough,  and  by  that  act  the  exclusive  power  and  au- 
thority of  the  former  inhabitants  of  New-London,  to  manage 
their  corporate  concerns,  is  taken  away  in  the  same  manner 
that  the  exclusive  authority  of  these  plaintiffs,  to  manage 
the  affairs  of  Dartmouth  College,  is  taken  away.  The  same 
thing  has  frequently  been  done  to  other  towns.  Yet  it  has 
never  been  made  a  question  in  our  courts,  whether  those  acts 
were  "  the  law  of  the  land,"  within  the  meaning  of  this 
clause  in  the  bill  of  rights.  Indeed,  if  this  clause  is  to  be 
construed  to  protect  private  property  and  rights  from  all 
legislative  interference,   what    construction  is  fo  be  given  to 

CO    1/1".=    "t. 


228  BAUTMOUTH  COLLEGE  VS.  WOODWAKIV 

that  clause  in  the  twelfth  article  in  the  bill  of  rights,  which 
declares  that  "no  part  of  a  man's  property  shall  be  taken 
"  from  him,  or  applied  to  publick  uses,  without  his  own  con- 
"  sent  or  that  of  the  representative  body  of  the  people?" 
The  cases  in  which  a  man's  property  may  be  taken  from 
him,  or  applied  to  publick  uses,wilh  the  consent  of  the  rep- 
resentative body,  are  not  specified  ;  but  it  undoubtedly  in- 
cludes all  those  not  expressly  protected  by  other  clauses  of 
the  constitution.     No  one  of  the  acts  just  mentioned,  seems 
to  afford  to  the  individuals,  whose  property  and  privileges 
may  be  affected  by  them,  a  less   solid  ground  of  complaint 
than  the  acts  in  question  do,  to  the  plaintiffs.     If  the   latter 
be  repugnant  to  this  clause  in  the  constitution,  so  must  be 
the  former.     There  seems  to  be  no  substantial  difference  in 
the  cases,  on  which  a  solid  distinction  can   be  founded.     If 
we  decide  that   these  acts  are  not  "  the  law  of  the  land," 
because  they  interfere  with  private    rights,    all   other   acts, 
interfering    with   private  rights,  may,    for  ought  we  see,  fall 
within  the  same  principle  ;  and  what  statute  does  not  either 
directly  or  indirectly,    interfere  with  private   rights  ?  The 
principle  would   probably  make  our  whole  statute  book  a 
dead  letter.     We  cannot  adopt  it ;  but  are  clearly  of  opinion 
that  these  acts,  if  not  repugnant  to  any  other   constitutional 
provision,  are  "  the  law  of  the  land,"  within  the  true  sense  of 
the  constitution. 

But  it  is  said,  that  the  charter  of  1769  is  a  contract,  the 
validity  of  which  is  impaired  by  these  acts,  in  violation  of 
that  clause  in  the  tenth  section  of  the  first  article  of  the  con- 
stitution of  the  United  States,  which  declares  that  "  No 
state  shall  pass  any  law,  impairing  the  obligation  of  con- 
tracts." It  has  probably  never  yet  been  decided,  that  a 
charter  of  this  kind  is  a  contract  within  the  meaning  of  the 
consUtution  of  the  United  States.  None  of  the  cases  cited, 
were  like  the  present.  In  the  case  of  Fletcher  vs.  Peck, 
(10)  there  was  an  express  contract,  a  conveyance  of  lands  to 

flO)6Cranch  87. 


SUPERIOR  COURT,  NEW-HAMPSHIRE.  229 

individuals,  for  their  own  use.  In  the  case  of  New-Jersey 
vs.  Wilson  (11),  thepe  was  also  an  express  contract,  a  treaty, 
by  which  lands  with  a  particular  privilege  annexed  to  the 
lands  themselves,  were  granted  to  individuals  for  their  own 
use,  and  upon  a  valuable  consideration  paid. 

This  clause,  in  the  constitution  of  the  United  States,  was 
obviously  intended  to  protect  private  rights  of  property,  and 
embraces  ail  contracts  relating  to  private  property,  whether 
executed  or  executory,  and  whether  between  individuals, 
between  states,  or  between  states  and  individuals.  The 
word  "  contracts"  must  however  be  taken,  in  its  common 
and  ordinary  acceptation,  a9  an  actual  agreement  between 
parties,  by  which  something  is  granted  or  stipulated,  imme- 
diately for  the  benefit  of  the  actual  parties.  But  this  clause 
was  not  intended  to  limit  the  power  of  the  states,  in  relation 
to  their  own  publick  officers  and  servants,  or  to  their  own 
civil  institutions,  and  must  not  be  construed  to  embrace  con- 
tracts, which  are  in  their  nature,  mere  matters  of  civil  insti- 
tution ;  nor  grants  of  power  and  authority,  by  a  state  to  in- 
dividuals, to  be  exercised  for  purposes  merely  publick. 
Thus,  marriage  is  a  contract;  but  being  a  mere  matter  of 
civil  institution,  is  not  within  the  meaning  of  this  clause.  A 
law,  therefore,  authorizing  divorces,  though  it  impairs  the 
validity  of  marriage  contracts,  h  not  a  violation  of  the  con- 
stitution of  the  United  Slates.  Thus  too  many  of  our  pe- 
nal statutes  give  a  part  of  the  penalties  and  forfeiHircs  incui- 
red  under  them,  to  particular  individual*,  and  whenever  a 
penalty  or  forfeiture  is  incurred,  such  individuals  have  a 
vested  right  to  sue  for  and  recover  such  forfeitures  and  pen- 
alties. But  a  repeal  of  those  acts,  at  any  lime  before  an  ac- 
tual recovery,  has  always  been  held  to  divest  thit-" 
right(12).  Such  repeal,  therefore,  clearly  impair* 
the    validity    of  the    grant  ;     but    no  one    ever    suppose;' 

(U)  7  (.'ranch  ICi. 
\<i)  I  (.alliion    \.7^:.    ('ranch     ^Sl  — •And   I/.-.wi.i  vs.  Jm.W  ■'-.   <"■•  '■-'»."'■■ 
\Kx   t  si  r 


230  DARTMOUTH  COLLEGE  VS.  WOODWARD 

that  such  grant  was  a  contract  within  the  meaning  of  thi» 
clause.  In  the  case  of  the  Commonwealth  vs.  Bird(13), 
it  was  decided,  that  the  legislature  had  a  constitutional  right 
to  take  away  from  individuals  an  exemption  from  military 
duty,  acquired  under  existing  laws  ;  and  it  seems  never  to 
have  occurred,  either  to  counsel  or  the  court,  that  the  laws 
granting  the  exemption,  were  a  contract  within  the  meaning 
of  this  clause  in  the  constitution.  The  legislature,  both  in 
this  state  and  in  Massachusetts,  have  always  claimed  and 
exercised  the  right  of  dividing  towns  ;  of  enlarging  or  dimin- 
ishing their  territorial  limits  ;  of  imposing  new  duties  or  lim- 
iting their  powers  and  privileges,as  the  publick  good  seemed 
to  require ;  and  this  without  their  consent.  Yet  this  right 
seems  never  to  have  been  called  in  question,  on  the  ground 
that  their  charters  were  contracts,  within  the  meaning  of 
this  clause.  All  our  judges,  justices  of  the  peace,  sheriffs, 
&c.  hold  their  offices  under  grants  from  the  governour  and 
council,  in  pursuance  of  statutes.  But  who  ever  supposed 
that  these  grants  were  contracts  within  the  meaning  of  this 
clause  of  Ihe  constitution  of  the  United  States.  The  dis- 
tinction we  have  here  endeavored  to  lay  down,  between  the 
contracts  which  are,  and  which  are  not  intended  by  that  in- 
strument, seems  to  us  to  be  clear  and  obvious.  If  the  char- 
ter of  a  publick  institution,  like  that  of  Dartmouth  College,  is 
to  be  construed  as  a  contract,  within  the  intent  of  the  consti- 
tution of  the  United  States,  it  will,  in  our  opinion,  be  difficult 
to  say  what  powers,in  relation  to  their  publick  institutions,  if 
any,  are  left  to  the  states.  It  is  a  construction,  in  our  view, 
repugnant  to  the  very  principles  of  all  government,  because 
it  places  all  the  publick  institutions  of  al!  the  states  beyond 
legislative  controul.  For  it  is  clear  that  congress  possesses 
no  powers  on  the  subject.  We  are  therefore  clearly  of 
opinion,  that  the  charter  of  Dartmouth  College  is  not  a  con- 

(13)  12  Mass.  Rep.  14.3. 


SUPERIOR  COURT,  NEW-HAMPSHIRE.  231 

tract,  within  the  meaning  of  this  clause  in  the  constitution  of 
the  United  States. 

But  admitting  that  charter  to  have  been  such  a  contract ; 
what  was  the  contract?  Can  it  be  construed  to  be  a  contract 
on  the  part  of  the  king  with  the  corporators,  whom  he 
appointed,  and  their  successors,  that  they  should  forew 
have  the  controul  of  the  affairs  of  this  institution,  and  be  for- 
ever free  from  all  legislative  interference,  and  that  their 
number  should  not  be  augmented  or  diminished,  however 
strongly  the  publick  interest  might  require  it?  Such  a  contract, 
in  relation  to  a  publick  institution,  would,  as  we  conceive,  be 
absurd  and  repugnant  to  the  principles  of  all  government. 
The  king  had  no  power  to  make  such  a  contract,  and  thus 
bind  the  sovereign  authority  on  a  subject  of  mere  publick 
concern.  Nor  does  our  legislature  possess  the  power  to  make 
Buch  a  contract.  Had  it  been  provided  in  the  act  of  June, 
1816,  that  the  twenty-one  trustees  should  forever  have  the 
exclusive  controul  of  this  institution,  and  that  no  future  legis- 
lature should  add  to  their  number,  does  any  one  suppose  such 
a  provision  would  have  been  binding  upon  a  future  legislature  ? 
Or  suppose  the  legislature  should  enact  that  the  number  of 
judges  of  this  court  should  never  be  augmented  j  is  it  possi- 
ble to  suppose  that  such  an  act  could  abridge  the  power  of 
a  succeeding  legislature  on  the  subject  ?  We  think  not.  A 
distinction  is  to  be  taken  between  particular  grants,  by  the 
legislature,  of  property  or  privileges  to  individuals,  for  their 
own  benefit,  and  grants  of  power  and  authority  to  be  exer- 
cised for  publick  purposes.  The  former  is  in  its  nature, 
special  legislation,  in  relation  to  private  rights;  the  latter  is 
general  legislation,  in  relation  to  the  common  interests  of  all. 
Chief  Justice  Marshall, in  the  case  of  Fletcher  vs.  Peck(14), 
adverts  to  this  distinction,  where  he  says  "  the  correctness 
"of  this  principle,  that  one  legislature  cannot  abridge  the 
"  powers  of  a  succeeding  legislature  sj  far  as  respects  gene- 

fl4)  Gf.'iaiich    I.-" 


232      DARTMOUTH  COLLEGE  VS.  WOODWARD. 

u  ral  legislation,  can  never  be  controverted.  But  if  an  act 
"be  done  under  a  law,  a  succeeding  legislature  cannot  undo 
"  it.  The  past  cannot  be  recalled  by  the  most  absolute  pow- 
*'  er.  Conveyances  have  been  made  ;  those  conveyances 
"  have  vested  legal  estates,  and  if  those  estates  may  be  sei- 
<<J|td  by  the  sovereign  authority,  still  that  they  originally 
"  vested,  is  a  fact  and  cannot  cease  to  be  a  fact."  We  are 
therefore  of  opinion,  that  if  this  charter  can  be  construed  to  be 
a  contract  within  the  meaning  of  the  constitutionof  the  United 
States ;  yet  still  it  contains  no  contract  binding  on  the  legisla- 
ture, that  the  number  of  trustees  shall  not  be  augmented,  and 
that  the  validity  of  the  contract  is  not  impaired  by  these  acts. 
I  have  looked  into  this  case  with  all  the  attention,  of  which 
I  am  capable,  and  with  a  most  painful  anxiety  to  discover 
the  true  principles,  upon  which  it  ought  to  be  decided.  No 
man  prizes  more  highly  than  I  do,  the  literary  institutions 
of  our  country,  or  would  go  farther  to  maintain  their  just 
rights  and  privileges.  But  I  cannot  bring  myself  to  believe, 
that  it  would  be  consistent  with  sound  policy,  or  ultimately 
with  the  true  interests  of  literature  itself,  to  place  the  great 
publick  institutions,  in  which  all  the  young  men,  destined  for 
the  liberal  professions,  are  to  be  educated,  within  the  abso* 
lutecontroul  of  a  few  individuals,and  out  of  thecontroul  of  the 
sovereign  power — not  consistent  with  sound  policy,  because 
it  is  a  matter  of  too  great  moment,  too  intimately  connected 
with  the  publick  welfare  and  prosperity,  to  be  thus  entrust- 
ed in  the  hands  of  a  few.  The  education  of  the  rising  gen- 
eration is  a  matter  of  the  highest  publick  concern, and  is  wor- 
thy of  the  best  attention  of  every  legislature.  The  immedi- 
ate care  of  these  institutions  must  be  committed  to  individu- 
als, and  the  trust  will  be  faithfully  executed  so  long  as  it 
is  recollected  to  be  a  mere  publick  trust,  and  that  there  is 
a  superintending  power,  that  can  and  will  correct  every 
abuse  of  it.  But  make  the  trustees  independent,and  they  will 
ultimately  forget    that  their  office  is  a  publick  trust — will  at 


SUPERIOR  COURT,  NEW-HAMPSHIRE.  233 

length  consider  these  institutions  as  their  own— will  overlook 
the  great  purposes  for  which  their  powers  were  originally 
given,  and  will  exercise  them  only  to  gratify  their  own  pri- 
vate views  and  wishes,  or  to  promote  the  narrow  purposes 
of  a  sect  or  a  party.  It  is  idle  to  suppose  that  courts  of 
law  can  correct  every  abuse  of  such  a  trust.  Courts  of 
law  cannot  legislate.  There  may  be  many  abuses,  which 
can  be  corrected  by  the  sovereign  power  alone.  Nor  would 
such  exemption  from  legislative  controul  be  consistent  with 
the  true  interests  of  literature  itself,  because  these  institu- 
tions must  stand  in  constant  need  of  the  aid  and  patronage 
of  the  legislature  and  the  publick  ;  and  without  such  aid 
and  patronage,  they  can  never  flourish.  Their  prosperity 
depends  entirely  upon  the  publick  estimation  in  which  they 
are  held.  It  is  of  the  highest  importance  that  they  should 
be  fondly  cherished  by  the  best  affections  of  the  people, 
that  every  citizen  should  feel  that  he  has  an  interest  in  them, 
and  that  they  constitute  a  part  of  that  inestimable  inherit- 
ance, which  he  is  to  transmit  to  his  posterity  in  the  institu- 
tions of  his  country.  But  these  institutions,  if  placed  in  a  sit- 
uation to  dispute  the  publick  will,  would  eventually  fall  into 
thrt  hands  of  men,  who  would  be  disposed  to  dispute  it  ;  and 
contests  would  inevitably  arise,  in  which  the  great  interests 
of  literature  would  be  forgotten.  Those  who  resisted  that  will, 
would  become  at  once  the  object  of  popular  jealousy  and 
distrust  :  their  motives,  however  pure,  would  be  called  in 
question,  and  their  resistance  would  be  believed  to  have  orig- 
inated in  private  and  interested  views,  and  not  in  regard  to 
the  publick  welfare.  It  would  avail  these  institutions  noth- 
ing that  the  publick  will  was  wrong,  and  that  their  right 
could  be  maintained  in  opposition  to  it,  in  a  court  of  law.  A 
triumph  there  might  be  infinitely  more  ruinous  than  defeat. 
Whoever  knows  the  nature  of  a  popular  government,  knows 
that  such  a  contest  could  not  be  thus  settled  by  one  engage- 
ment Such  a  triumph  would  only  protract  the  destructive 
Ml 


234  DARTMOUTH  COLLEGE  VS.  WOODWARD. 

contest.  The  last  misfortune  which  can  befal  one  of  theac 
institutions,  is  to  become  the  subject  of  popular  conten- 
tion. 

I  am  aware  that  this  power  in  the  hands  of  the  legislature 
may,  like  every  other  power,  at  times  be  unwisely  exercis- 
ed ;  but  where  can  it  be  more  securely  lodged  ?  If  those, 
whom  the  people  annually  elect  to  manage  their  publick  af- 
fairs, cannot  be  trusted,  who  can  1  The  people  have  most 
emphatically  enjoined  it  in  the  constitution,  as  a  duty  upon 
"  the  legislators  and  magistrates,  in  all  future  periods  of  the 
"  government,  to  cherish  the  interests  of  literature  and  the 
"  sciences  and  all  seminaries  and  publick  schools."  And 
those  interests  will  be  cherished,  both  by  the  legislature  and 
the  people  so  long  as  there  is  virtue  enough  left  to  maintain 
the  rest  of  our  institutions.  Whenever  the  people  and  their 
rulers  shall  become  corrupt  enough  to  wage  war  with  the  sci- 
ences and  liberal  arts,  we  may  be  assured  that  the  time  will 
have  arrived,  when  all  our  institutions,  our  laws,  our  liber- 
ties must  pass  away, — when  all  that  can  be  dear  to  freemen, 
or  that  can  make  their  country  dear  to  them,  must  be  lost, 
and  when  a  government  and  institutions  must  be^established, 
of  a  \evy  different  character  from  those  under  which  it  is  our 
pride  and  happiness  to  live. 

In  forming  my  opinion  in  this  case,  however,  I  have  giv- 
en no  weight  to  any  considerations  of  expediency.  I  think 
the  legislature  had  a  clear  constitutional  right  to  pass  the 
laws  in  question.  My  opinion  may  be  incorrect,  and  our 
judgment  erroneous,  but  it  is  the  best  opinion,  which  upon  the 
most  mature  consideration,  I  have  been  able  to  form.  It  is 
certainly,  to  me,  a  subject  of  much  consolation,  to  know 
that  if  we  have  erred,  our  mistakes  can  be  corrected,  and 
be  prevented  from  working  any  ultimate  injustice.  If  the 
plaintiffs  think  themselves  aggrieved  by  our  decision,  they 
can  carry   the  cause  to   another   tribunal,  where  it    can  be 


SUPREME  COURT,  UNITED  STATES.  235 

re-examined,  and   our  judgment   be  reversed,  or   affirmed, 
as  the  law  of  the  case  may  seem  to  that  tribunal  to  require. 
Let  judgment  be  entered  for  the  defendant. 


Judgment  was  then  enlered  as  follows  ;« — And  thereupon 
all  and  singular  the  premises  being  seen,  and  by  the  court 
now  here  fully  understood,  and  mature  deliberation  being 
thereupon  had,  it  appears  to  the  court  now  here,  that  the 
said  acts  of  the  27ih  of  June,  18th  and  26th  of  December  in 
the  year  1816,  before  recited,  are  valid  in  law,  and  binding 
on  said  trustees  of  Dartmouth  College,  without  acceptance 
thereof,  or  assent  thereto  by  them,  so  as  to  render  the  said 
plaintiff's  incapable  of  maintaining  this  action,  and  are  not  re-~ 
pugnant  to  the  constitution  of  the  United  States.  It  is  there 
fore  considered  that  the  said  William  H.  Woodward  recov- 
er his  costs  of  this  suit,  taxed  at  eleven  dollars  and  forty- 
two  cents. — 

The  original  plaintiffs  then  sued  out  a  writ  of  error  to 
remove  the  cause  to  the  supreme  court  of  the  United  States, 
where  it  was  entered  at  the  term  of  (he  court  holderi  at 
Washington,  the  seat  of  the  national  government,  on  the  first 
Monday  of  February,  A.  I).  1818 

The  following  is  the  assignment  of  errors 

And  the  said  trustees  of  Dartmouth  College  come  and 
say,  that  in  the  record  and  proceedings  aforesaid,  and  also 
in  giving  the  judgment  aforesaid,  there  is  manifest  error  in 
this,  to  wit,  that  the  said  statutes  of  the  legislature  of  the 
State  of  New-Hampshire,  made  and  passed  on  the  27th  day 
of  June,  the  18th  and  26th  days  of  December  in  :he  year  of 
our  Lord  1816,  are  repugnant  to  the  constitution  of  the  Unit- 
ed States  and  void. 

There  is  also  error  in  this,  that  by  the  record  and  judg- 
ment aforesaid,  it  appears,  that  the    validity  of  certain    staf- 


236  DARTMOUTH  COLLEGE  VS.  WOODWARD. 

utes  of  the  legislature  of  the  state  of  New-Hampshire,  made 
and  passed  on  the  27th  day  of  June,  and  on  the  18th  and 
26th  days  of  December  in  the  year  of  our  Lord  one  thou- 
sand eight  hundred  and  sixteen,  recited  in  the  special  ver- 
dict aforesaid,  was  drawn  in  question,  on  the  ground  that  the 
said  statutes  were  not  valid  in  law,  and  binding  on  the  said 
trustees  of  Dartmouth  College,  without  acceptance  thereof, 
or  assent  thereunto  by  them,  the  said  trustees  of  Dartmouth 
College,  so  as  to  render  the  plaintiffs  incapable  in  law  of 
maintaining  this  action,  and  that  the  same  acts  were  repug- 
nant to  the  constitution  of  the  United  States,  and  so  void  \ 
and  the  decision  and  judgment  aforesaid  was  in  favour  of 
their  validity ;  to  wit,  that  the  said  statutes  are  valid  in  law 
and  binding  on  the  said  trustees  of  Dartmouth  College,  with- 
out acceptance  thereof,  or  assent  thereunto  by  them,  the 
said  trustees,  so  as  to  render  them  incapable  in  law  of  main- 
taining this  action,  and  that  the  said  acts  are  not  nor 
is  either  of  them  repugnant  to  the  constitution  of  the 
United  States  ;  wherefore  in  that,  there  is  also  manifes!  er- 
ror. 

There  is  also  error  in  this,  to  wit,  that  by  the  record  a- 
foresaid  it  appears  that  the  judgment  aforesaid,  in  form  a- 
foresaid  given,  was  given  for  the  said  William  H.  Wood- 
ward against  the  said  trustees  of  Dartmouth  College,  where- 
as by  the  law  of  the  land,  the  said  judgment  ought  to  have 
been  given  for  the  said  trustees  of  Dartmouth  College  against 
the  said  William  H.  AVoodward. 

And  the  said  trustees  of  Dartmouth  College  pray,  that  the 
judgment  aforesaid,  for  the  errors  aforesaid  and  other  errors 
in  the  record  and  proceedings  aforesaid,  may  be  reversed, 
annulled,  and  altogether  held  for  nothing,  and  that  they  may 
be  restored  to  all  things,  which  tbey  have  lost  by  occasion 
of  the  said  judgment,  and  that  the  said  William  II.  Wood- 
ward may  rejoin  to  the  errors  above  assigned,  &c. 


SUPREME  COURT,  UNITED  STATES.  237 

The  defendant  pleaded  in  millo  est  erratum. 

The  parties  entered  into  the  following  agreement,  which 
came  up  with  the  record. 

It  is  agreed  by  the  parlies,  that  if  (he  plaintiffs  shall  recov- 
er by  the  judgment  of  the  supreme  court  of  the  United 
States,  they  shall  accept  the  delivery  of  the  articles  men- 
tioned in  their  declaration,  in  full  satisfaction  of  the  damages 
recovered. 

It  is  also  agreed,  that  no  advantage  shall  be  taken,  in  the 
supreme  court  of  the  United  States,  of  any  want  of  form  in 
the  proceedings,  and  that  the  counsel  then  may  add  any  facts 
documents,  or  records  to  the  special  verdict,  to  be  taken 
and  deemed  as  part  thereof,  or  expunge  any  fact  therefrom, 
which  in  the  opinion  of  the  counsel  or  the  supreme  court 
may  be  necessary  to  the  obtaining  of  a  decision  on  the  valid- 
ity of  the  acts  of  the  legislature  of  New-Hampshire,  recited 
in  the  special  verdict: — And  that  if  the  said  acts  are  adjudg- 
ed to  be  valid,  the  judgment  is  to  be  affirmed,  otherwise  re- 
versed. 

It  is  also  agreed  by  the  plaintiff's  counsel,  in  order  that  the 
same  question  may  come  fairly  before  the  court,  that  the  de- 
mand, refusal,  and  conversion  staled  in  the  special  verdict, 
shall  be  considered  as  made  and  done,  on  the  day  preceding 
the  commencement  of  this  siut. 

The  cause  came    on    to   be  argued   on   the   10th  day   of 
March  181 8,  all  the  judges  being  present,  to  wit, 
The  Hon.  John  Marshall,  Chief  Justice. 
The  Hon.  Bushrod  Washington,  Associate  Justice. 
The  Hon.  William  Johnson,  Associate  Justice. 
The  Hon  Brockholst  Livingston,  Associate  Justice. 
The  Hon.  Thomas  Todd,  Associate  Justice. 
The  [Ion.  Gabriel  Duvall,  Associate  Justice. 
The  Hon.  Joseph  Story,  Associate  Justice. 


233  DARTMOUTH  COLLEGE  VS.  WOODWARD. 

The  argument  was  commenced  by 

Mr.  Webster,  for  the  plaintiffs  in  error. — The  gen- 
eral question  is,  whether  the  acts  of  the  27th  of  June, 
and  of  the  18th  and  26th  of  December,  1816,  are  valid 
and  binding  on  the  rights  of  the  plaintiffs,  without  their 
acceptance  or  assent. 

The  charter  of  1769  created  and  established  a  corpora- 
lion,  to  consist  of  twelve  persons,  and  no  more  ;  to  be  called 
the  "  Trustees  of  Dartmouth  College."  The  preamble  to 
ihe  charter  recites,that  it  is  granted  on  the  application  and  re- 
quest of  the  Rev.  Eleazer  Wheelock:  That  Dr.  Wheelock, 
about  the  year  1764,  established  a  charity  school,at  his  own 
expense,  and  on  h'rs  own  estate  and  plantation:  That,  for  sev- 
eral years,  through  the  assistance  of  well  disposed  persons  in 
America,  granted  at  his  solicitation,  he  had  clothed,  main- 
tained, and  educated  a  number  of  the  native  Indians,  and 
employed  them  afterwards  as  missionaries  and  schoolmasters 
among  the  savage  tribes  :  That  his  design  promising  to  be 
useful,  he  had  constituted  the  Rev.  Mr.  Whitaker  to  be  his 
attorney,  with  power  to  solicit  contributions,  in  England,  for 
the  further  extension  and  carrying  on  of  his  undertaking ; 
and  that  he  had  requested  the  Earl  of  Dartmouth,  Baron 
Smith,  Mr.  Thornton,  and  other  gentlemen,  to  receive  such 
sums  as  might  be  contributed,  in  England,  towards  support- 
ing his  school,  and  to  be  trustees  thereof,  for  his  charity  ; 
which  these  persons  had  agreed  to  do.  And  thereupon  Dr. 
Wheelock  had  executed  to  them  a  deed  of  trust,  in  pursu- 
ance to  such  agreement,  between  him  and  them,  and  for  di- 
vers good  reasons,  had  referred  it  to  these  persons,  to  deter- 
mine the  place  in  which  the  school  should  be  finally  estab- 
lished :  And  to  enable  them  to  form  a  proper  decision  on 
ibis  subject,  had  laid  before  them  the  several  offers  which 
had  been  made  to  him  by  the  several  governments  in  Amer- 
ica, in  order  to  induce  him  to  settle  and  establish  his  school 


SUPREME  COURT,  UNITED  STATES.  2S9 

within  the  limits  of  such  governments  for  their  own  emolu- 
ment, and  the  increase  of  learning  in  their  respective  places, 
as  well  as  for  the  furtherance  of  his  general  original  design. 
And  in  as  much  as  a  number  of  the  proprietors  of  lands  in 
New  Hampshire,  animated  by  the  example  of  the  governour 
himself  and  others,  and  in  consideration  that  without  any  im- 
pediment to  its  original  design,  the  school  might  be  enlarged 
and  improved, to  promote  learning  among  the  English,  and  to 
supply  ministers  to  the  people  of  that  province,  had  promis- 
ed large  tracts  of  land,  provided  the  school  should  be  estab- 
lished in  that  province,  the  persons  before  mentioned,  hav- 
ing weighed  the  reasons  in  favour  of  the  several  places  pro- 
posed, had  given  the  preference  to  this  province,  and  these 
offers;  that  Dr.  Wheelock  therefore  represented  the  neces- 
sity of  a  legal  incorporation,  and  proposed  that  certain  gen- 
tlemen in  America,  whom  he  had  already  named  and  ap- 
pointed in  his  will,  to  be  trustees  of  his  charily  after  his  de- 
cease, should  compose  the  corporation.  Upon  this  recital, 
and  in  consideration  of  the  laudable  original  design  of  Dr. 
Wheelock,  and  willing  that  the  best  means  of  education  be 
established  in  New-Hampshire,  for  the  benefit  of  the  pro- 
vince, the  king  grants  the  charter,  by  the  advice  of  his  pro- 
vincial council. 

The  substance  of  the  facts  thus  recited,  is,  that  Dr. 
Wheelock  had  founded  a  charity,  on  funds  owned  and  pro- 
cured by  himself;  that  he  was  at  that  time  the  sole  dispen- 
ser and  sole  administrator,  as  well  as  the  legal  owner  of 
these  funds  ;  that  he  had  made  his  will,  de\  ising  this  proper- 
ty in  trust,  to  continue  the  existence  and  uses  of  the  school, 
and  appointed  trustees;  that,  in  this  state  of  things,  he  had 
been  invited  to  fix  his  school,  permanently,  in  New-Hamp- 
shire, and  to  extend  the  design  of  it  to  the  education  of  the 
youth  of  that  province;  that  before  he  removed  his  school 
or  accepted  this  invitation,  which  his  friends  in  England  had 
advised  him  to  accept,  he  applied  for  a  charter.  !<•  he  grant 


240  DARTMOUTH  COLLEGE  VS.  WOODWARD. 

ed,  not  to  whomsoever  the  king  or  government  of  the  prov- 
ince should  please,  but  to  such  persons  as  he  named  and  ap- 
pointed, viz.  the  persons  whom  he  had  already  appointed  to 
be  the  future  trustees  of  his  charity  by  his  will. 

The  charter,  or  letters  patent,  then  proceed  to  create  such 
a  corporation,  and  to  appoint  twelve  persons  to  constitute  it, 
by  the  name  of  the  "  Trustees  of  Dartmouth  College  ;"  to 
have  perpetual  existence,  as  such  corporation,  and  with  pow- 
er to  hold  and  dispose  of  lands  and  goods,  for  the  use  of  the 
College,  with  all  the  ordinary  powers  of  corporations.  They 
are  in  their  discretion  to  apply  the  funds  and  property  of  the 
college  to  the  support  of  the  president,  tutors,  ministers,  and 
other  officers  of  the  college,  and  such  missionaries  and 
schoolmasters  as  they  may  see  fit  to  employ  among  the  In- 
dians. There  are  to  be  twelve  trustees  forever,  and  no 
more  ;  and  they  are  to  have  the  right  of  filling  vacancies  oc- 
curring in  their  own  body.  The  Rev.  Mr.  Wheelock  is  de- 
clared (o  be  the  founder  of  the  college,  and  is,  by  the  char- 
ter, appointed  first  president,  with  power  to  appoint  a  suc- 
cessor by  his  last  will.  All  proper  powers  of  government, 
superintendence,  and  visitation,  are  vested  in  the  trustees. 
They  are  to  appoint  and  remove  all  officers  at  their  discre- 
tion ;  to  fix  their  salaries,  and  assign  their  duties  :  and  to 
make  all  ordinances,  orders,  and  laws  for  the  government  of 
the  students.  And  to  the  end  that  the  persons  who  had 
acted  as  depositories  of  the  contributions  in  England,  and 
who  had  also  been  contributors  themselves,  might  be  satis- 
lied  of  (he  good  use  of  their  contributions,  the  president  was 
annually,  or  when  required,  to  transmit  to  them  an  account 
of  (he  progress  of  the  institution  and  the  disbursements  of  its 
funds,  so  long  as  they  should  continue  to  act  in  that  trust. — 
These  Idlers  patent  are  to  be  good  and  effectual,  in  law, 
(tgaiiifd  the  king,  his  heirs  and  successors  forever,  without 
further  grant  or  confirmation  ;  and  the  trustees  are  to  hold 
all  ami  singular  these  privileges,  advantages,  liberties,  and  im- 
munities to  them  and  to  their  successors  forever. 


SUPREME  COURT,  UNITED  STATES.  241 

No  funds  are  given  to  the  college  by  this  charter.  A 
corporate  existence  and  capacity  are  given  to  the  trustees, 
with  the  privileges  and  immunities  which  have  been  mention- 
ed, to  enable  the  founder  and  his  associates  the  better  to 
manage  the  funds  which  they  themselves  had  contributed, 
and  such  others  as  they  might  afterwards  obtain. 

After  the  institution,  thus  created  and  constituted,  had 
existed,  uninterruptedly  and  usefully,  nearly  fifty  years, 
the  legislature  of  New-Hampshire  passed  the  acts  in  ques- 
tion. 

The  first  act  makes  the  twelve  trustees  under  the  char- 
ter, and  nine  other  individuals  to  be  appointed  by  the  gov- 
ernour  and  council,  a  corporation,  by  a  new  name  ;  and  to 
this  new  corporation  transfers  all  theproperty,  rights,  pow- 
ers, liberties  and  privileges  of  the  old  corporation  ;  with 
further  power  to  establish  new  colleges  and  an  institute,  and 
to  apply  all  or  any  part  of  the  funds  to  these  purposes  : 
subject  to  the  power  and  controul  of  aboard  of  twenty-five 
overseers,  to  be  appointed  by  the  governour  and  council. 

The  second  act  makes  further  provisions  for  executing 
the  objects  of  the  first,  and  the  last  act  authorizes  the  de- 
fendant, the  treasurer  of  the  plaintiffs,  to  retain  aud  hold 
their  property,  against  their  will. 

If  these  acts  are  valid,  the  old  corporation  is  abolished, 
and  a  new  one  created.  The  first  act  does,  in  fact,  if  it  can 
have  any  effect,  create  a  new  corporation,  and  transfer  to  it 
all  the  property  and  franchises  of  the  old.  The  two  corpo- 
rations are  not  the  same,  in  any  thing  which  essentially  be- 
longs to  the  existence  of  a  corporation.  They  have  differ- 
ent names,  and  different  powers,  rights,  and  duties.  Their 
organization  is  wholly  different.  The  powers  of  the  corpo- 
ration are  not  vested  in  the  same,  or  similar  hands.  In  one, 
the  trustee*  are  twelve,  and  no  more.  In  the  other,  tliey 
are  twenty-one.  In  one,  the  power  is  in  a  single  board.  In 
the  other,  it  is  divided  betwen  two  boards.  Although  the 
32 


242  DARTMOUTH  COLLEGE  VS.  WOODWARD. 

act  professes  lo  include  the  old  trustees  in  the  new  corpora- 
tion, yet  that  was  without  their  assent,  and  against  their  re- 
monstrance ;  and  no  person  can  be  compelled  to  be  a  mem- 
ber of  such  a  corporation  against  his  will.  It  was  neither 
expected  nor  intended,  that  they  should  be  members  of  the 
new  corporation.  The  act  itself  treats  the  old  corporation 
as  at  an  end,  and  going  on  the  ground  that  all  its  functions 
have  ceased,  it  provides/or  the  first  meeting  and  organisa- 
tion of  the  new  corporation.  It  expressly  provides,  also, 
that  the  new  corporation  shall  have  and  hold  all  the  proper- 
ty of  the  old  ;  a  provision  which  would  be  quite  unnecessa- 
ry upon  any  other  ground,  than  that  the  old  corporation  was 
dissolved.  But  if  it  could  be  contended,  that  the  effect  of 
these  acts  was  not  entirely  to  abolish  the  old  corporation, 
yet  it  is  manifest  that  they  impair  and  invade  the  rights,  prop- 
erty, and  powers  of  the  trustees  under  the  charter,  as  a  cor- 
poration,  and  the  legal  rights,  privileges,  and  immunities 
which  belong  to  them,  as  individual  members  of  the  corpo- 
ration. 

The  twelve  trustees  were  the  sole  legal  owners  of  all  the 
property  acquired  under  the  charter.  By  the  acts  others 
are  admitted,  against  their  will,  to  be  joint  owners.  The 
twelve  individuals,  who  are  trustees,  were  possessed  of  all 
the  franchises  and  immunities  conferred  by  the  charter. — 
By  the  acts,  nine  other  trustees,  and  twenty-five  overseers 
are  admitted  against  their  will,  to  divide  these  franchises  and 
immunities  with  them. 

If  either  as  a  corporation,  or  as  individuals,  they  have  any 
legal  rights,  this  forcible  intrusion  of  others  violates  those 
rights,  as  manifestly  as  an  entire  and  complete  ouster  and 
dispossession.  These  acts  alter  the  whole  constitution  of 
the  corporation.  They  affect  the  rights  of  the  whole  body 
as  a  corporation,  and  the  rights  of  the  individuals  who  com- 
pose it.  They  revoke  corporate  powers  and  franchises. — 
They  alienate  and  transfer  the  property  of  the   college  to 


SUPREME  COURT,  UNITED  STATES.        243 

others.  By  the  charter,  the  trustees  had  a  right  to  fill  va 
cancies  in  their  own  number.  This  is  now  taken  away. 
They  were  to  consist  of  twelve,  and  by  express  provision  of 
uo  more.  This  is  altered.  They  and  their  successors,  ap- 
pointed by  themselves,  were  forever  to  hold  the  property. 
The  legislature  has  found  successors  for  them,  before  their 
seats  are  vacant.  The  powers  and  privileges,  which  the 
twelve  were  to  exercise  exclusively,  are  now  to  be  exercised 
by  others.  By  one  of  the  acts,  they  are  subjected  to  heavy 
penalties,  if  they  exercise  their  offices,  or  any  of  those  pow- 
ers and  privileges  granted  them  by  charier,  and  which  they 
had  exercised  for  fifty  years.  They  are  to  be  punished  for 
not  accepting  the  new  grant,  and  taking  its  benefits.  This, 
it  must  be  confessed,  is  rather  a  summary  mode  of  settling  a 
question  of  constitutional  right.  Not  only  are  new  trustees 
forced  into  the  corporation,  but  new  trusts  and  uses  arc  cre- 
ated. The  college  is  turned  into  a  university.  Power  is 
given  to  create  new  colleges,  and,  to  authorize  any  diversion 
of  the  funds,  which  may  be  agreeable  to  the  new  boards, 
sufficient  latitude  is  given  by  the  undefined  power  of  estab- 
lishing an  Institute.  To  these  new  colleges,  and  this  Insti- 
tute, the  funds  contributed  by  the  founder,  Dr.  Whcelock, 
and  by  the  original  donors,  the  Earl  of  Dartmouth  and  oth- 
ers, are  to  be  applied,  in  plain  and  manifest  disregard  of  the 
uses  to  which  they  were  given. 

The  president,  one  of  the  old  trustees,  had  a  right  to 
his  office,  salary,  and  emoluments,  subject  to  the  twelve 
trustees  alone.  His  title  to  these  i^  now  changed,  and  he 
is  made  accountable  to  new  musters.  So  also  all  the  profes- 
sors and  tutors.  If  the  legislature  can  at  pleasure  make  these 
alterations  and  changes,  in  the  rights  and  privileges  of  the 
plaintiiFs,  it  may,  with  equal  propriety,  abolish  these  rights 
and  privileges  altogether.  The  same  power  which  can  do 
any  part  of  this  work,  can  accomplish  the  whole.  And  in- 
deed, the  argument  on  which  those  acts  have  been  hilhci 


"244  DARTMOUTH  COLLEGE  VS.  WOODWARD 

to  defended,  goes  altogether  on  the  ground,  that  this  is  such 
a  corporation  as  the  legislature  may  abolish  at  pleasure  ;  and 
that  its  members  have  no  rights,  liberties,  franchises, prop- 
erty or  privileges,  which  the  legislature  may  not  revoke,  an- 
nul, alienate  or  transfer  to  others  whenever  it  sees  fit. 

It  will  be  contended  by  the  plaintiffs  that  these  acts 
are  not  valid  and  binding  on  them,  without  their  assent. 
1.  Because  they  are  against  common  right,  and  the  consti- 
tution of  New-Hampshire.  2.  Because  they  are  repugnant 
to  the  constitution  of  the  United  Slates. 

I  am  awareof  the  limits  which  boundthejurisdictionof  the  court 
in  this  case  and  that  on  this  record  nothing  can  be  deckled, but. 
the  singlequestion,whether  these  acts  are  repugnant  to  the  con- 
stitution of  the  United  States.  Yet  it  may  assist  in  forming  an 
opinion  of  their  true  nature  and  character,  to  compare  them 
with  these  fundamental  principles,  introduced  into  the  state 
governments  for  the  purpose  of  limiting  the  exercise  of  the 
legislative  power,  and  which  the  constitution  of  New-Hamp- 
shire expresses  with  great  fulness  and  accuracy. 

It  is  not  too  much  to  assert,  that  the  legislature  of  New- 
Hampshire  would  not  have  been  competent  to  pass  the  acts 
in  question,and  to  make  them  binding  on  the  plaintiffs  without 
their  assent,  even  if  there  had  been,  in  the  constitution  of 
New-Hampshire,  or  of  the  United,States,  no  special  restric- 
tion on  their  power ;  because  these  acts  are  not  the  exer- 
cise of  a  power  properly  legislative  (1).  Their  object  and 
effect  is  to  take  away,  from  one,  rights,  property,  and  fran- 
chises, and  to  grant  them  to  another.  This  is  not  the  ex- 
ercise of  a  legislative  power.  To  justify  the  taking  away 
of  vested  rights,  there  must  be  a  forfeiture ;  to  adjudge  upon 
and  declare  which,  is  the  proper  province  of  the  judiciary. 
Attainder  and  confiscation  are  acts  of  sovereign  power  ;  not 
acts  of  legislation.  The  British  parliament,  among  other  un- 
limited powers,  claims  that  of  altering  and  vacating  char- 
ts Calder  et  ux.  v.  Bull,  3.1  Dallas  386. 


SUPREME  COURT,  UNITED  STATES.  245 

tera  ;  not  as  an  act  of  ordinary  legislation,  but  of  uncontrol- 
led authority.  It  is  theoretically  omnipotent.  Yet,  in  mod- 
ern times,  it  has  attempted  the  exercise  of  this  power  very 
rarely.  In  a  celebrated  instance,  those  who  asserted  this 
power  in  parliament,  vindicated  its  exercise  only  in  a  case,  in 
which  it  could  be  shewn, 1st,  that  the  charter  in  question  was 
a  charter  of  political  power;  2.  That  there  was  a  great  and 
overruling  state  necessity,  justifying  the  violation  of  the 
charter.  3.  That  the  charter  had  been  abused,  and  justly 
forfeited(2).  The  bill  affecting  this  charter  did  not  pass.  Its 
history  is  well  known.  The  act  which  afterwards  did  pass, 
passed  with  the  assent  of  the  corporation.  Even  in  the 
worst  times  this  power  of  parliament  to  repeal  and  rescind 
charters,  has  not  often  been  exercised.  The  illegal  proceed- 
ings in  the  reign  of  Charles  II.  were  under  colour  of  law. 
Judgments  of  forfeiture  were  obtained  in  the  courts,  Such 
was  the  case  of  the  quo  warranto  against  the  city  of  Lon- 
don,andthe  proceedings  by  which  the  charter  ofMassachu 
setts  was  vacated. 

The  legislature  of  New-Hampshire  has  no  more  power 
over  the  rights  of  the  plaintiffs  than  existed,  somewhere,  in 
some  department  of  government,  before  the  revolution.  Tin- 
British  parliament  could  not  have  annulled  or  revoked  this 
grant  as  an  act  of  ordinary  legislation.  If  it  had  done  it  al 
all,  it  could  only  have  been  in  virtue  of  that  sovereign  pow- 
er, called  omnipotent,  which  docs  not  belong  to  any  legisla- 
ture in  the  United  States.  Tlni  legislature  of  Mew-llamp- 
shire  has  the  same  power  over  this  charier,  which  belonged 
to  the  king,  who  granted  it  ;  and  no  more.  By  the  law  of 
England  the  power  to  create  corporations  i.s  a  part  of  the 
royal  prerogative. (3)  By  the  revolution,  this  power  may  be 
considered  as  having  devolved  on  the  legislature  of  the  state 

(2)  Annual  Regr.  1784,  p.  I  GO.— Parlin.  K-.r.  1783.— Mr.  Hurler's  Spcrrh 
on  Mr.  Fox's  K.  I.  BUI.  Burke's  Works— 'J  \  ol.  p.  4li.  il7.  407.  4G8. 
48G. 

(3)  1  Black.  472,  473. 


246  DARTMOUTH  COLLEGF,  VS.  WOODWARD. 

and  it  has  accordingly  been  exercised  by  the  legislature. 
But  the  king  cannot  abolish  a  corporation,  or  new  model  it, 
or  alter  its  powers  without  its  assent.  This  is  the  acknowl- 
edged and  well  known  doctrine  of  the  common  law.  "  What- 
ever might  have  been  the  notion  in  former  times,',  says 
Jord  Mansfield,  ♦*  it  is  most  certain  now,  that  the  corpora- 
tions of  the  universities  are  lay  corporations  ;  and  that  the 
crown  cannot  take  away  from  them  any  rights  that  have 
been  formerly  subsisting  in  them  under  old  charters  or  pre- 
scriptive usage" (4).  After  forfeiture  duly  found,  the  king 
may  regrant  the  franchises  ;  but  a  grant  of  franchises  alrea- 
dy granted,  and  of  which  no  forfeiture  has  been  found,  is 
void. 

Corporate  franchises  can  only  be  forfeited  by  trial  and 
judgment(5).  In  case  of  a  new  charter  or  grant  to  an  existing 
corporation,  it  may  accept  or  reject  it  as  it  pleases(6).  It 
may  accept  such  part  of  the  grant  as  it  chooses,  and  reject 
the  rest(f).  In  the  very  nature  of  things,  a  charter  cannot 
be  forced  upon  any  body.  No  one  can  be  compelled  to  ac- 
cept a  grant;  and  without  acceptance,  the  grant  is  necessa- 
rily void(8)-  It  cannot  be  pretended  that  the  legislature,  a3 
successor  to  the  king  in  this  part  of  hi3  prerogative,  has  any 
power  to  revoke,  vacate  or  alter  this  charter.  If,  therefore, 
the  legislature  has  not  this  power  by  any  specific  grant  con- 
tained in  the  constitution  ;  nor  as  included  in  its  ordinary 
legislative  powers;  nor  by  reason  of  its  succession  to  the 
prerogatives  of  the  crown  in  this  particular ;  on  what  ground 
would  the  authority  to  pass  these  acts  rest  ;  even  if  there 
were  no  prohibitory  clauses  in  the  constitution  and  the  bill 
of  rights  ? 

But  there  are  prohibitions  in  the  constitution  and  bill  of 
rights  of  New-Hampshire,  introduced  for  the  purpose  oflim-^ 

(4)  3  Burr.  1656. 

(5)  3  T.  R.  244.  King  vs.  Pasmore. 

(6)  King  vs.  Vice  Chancellor  ol  Cambridge,  S.  Bun>  1656.  3  T.  R.  240.— 
Lord  Kenyon. 

(7)  Idem  16lii,  and  King  vs.  Pasmore,  ubi  supra. 

(8)  Ellis  vs-  Marshall,  2  Mass.  Hep.  277.     1  Kyd.  on  corporations  65    6*. 


SUPREME  COURT,  UNITED  STATES.        247 

itlng  the  legislative  power,  and  protecting  the  rights  and 
property  of  the  citizens.  One  prohibition  is  "  that  no  per- 
son shall  be  deprived  of  his  property,  immunities  or  priv- 
ileges, put  out  of  the  protection  of  the  law,  or  deprived  of 
his  life,  liberty  or  estate,  but  by  judgment  of  his  peers  or 
the  law  of  the  land." 

In  the  opinion,  however,  which  was  given  in  the  court 
below,  it  is  denied  that  the  trustees  under  the  charter,  had 
any  property,  immunity,  liberty  or  privilege,  in  this  corpo- 
ration within  the  meaning  of  this  prohibition  in  the  bill  of 
rights,  It  is  said  that  it  is  a  publick  corporation,  and  pub- 
lick  property.  That  the  trustees  have  no  greater  interest 
in  it,  than  any  other  individuals.  That  it  is  not  private  prop- 
erty, which  they  can  sell,  or  transmit  to  their  heirs ;  and 
that  therefore  they  have  no  interest  in  it.  That  their  office 
is  a  publick  trust  like  that  of  the  governour,  or  a  judge;  and 
that  they  have  no  more  concern  in  the  property  of  the  col- 
lege, than  the  governour  in  the  property  of  the  state,  or  than 
the  judges  in  the  fines  which  they  impose  on  the  culprits  at 
their  bar.  That  it  is  nothing  to  them,  whether  their  powers 
shall  be  extended  or  lessened  ;  any  more  than  it  is  to 
their  honours,  whether  their  jurisdiction  shall  be  enlarged  or 
diminished.  It  is  necessary,  therefore,  to  inquire  into  the 
true  nature  and  character  of  the  corporation,  which  was  cre- 
ated by  the  charter  of  1769. 

There  are  divers  sorts  of  corporations;  and  it  may  be 
safely  admitted  that  the  legislature  has  more  power  over 
some  than  others(9).  Some  corporations  are  for  government 
and  political  arrangement ;  such  for  example  as  cities,  coun- 
ties and  towns  in  New-England.  These  may  be  changed 
and  modified  as  publick  convenience  may  require,  due  re- 
gard being  always  hud  to  therights  of  property. Oi  such  cor 
porations,  all  who  live  within  the  limits  arc  of  course  oblig- 
ed to  be  members,  and  to  submit  \o  the  duties  which  the 
.     I  Vv'ootltk-son  *:i.     1  LI"'.,  -ii'/. 


V 


218  DARTMOUTH  COLLEGE  TS.  WOODWARD. 

law  imposes  on  them  as  such.  Other  civil  corporations  arc 
for  the  advancement  of  trade  and  business,  such  as  banks, 
insurance  companies,  and  the  like.  These  arc  created  not 
by  general  law,  but  usually  by  grant.  Their  constitution 
is  special.  It  is  such  as  the  legislature  sees  (it  to  give,  and 
the  grantees  to  accept. 

The  corporation  in  question  is  not  a  cm7,although  it  is  a  lay 
corporation.  It is  an  eleemosynary  corporation.  It  h  a.  private 
cJwm7?/,originally  founded  and  endowed  by  an  individual,  with 
a  charter  obtained  for  it  at /us  request,  for  the  better  adminis- 
tration of  his  charity.  "  The  eleemosynary  sort  of  corpo- 
rations, are  such  as  are  constituted  for  the  perpetual  distrilm- 
lions  of  the  free  alms  or  bounty  of  the  founder  of  them,  to 
such  persons  as  he  has  directed.  Of  this  are  all  hospitals 
for  the  maintenance  of  the  poor,  sick  and  impotent  ;  and  all 
colleges  both  in  our  universities  and  out  of  them" (10). — 
Eleemosynary  corporations  are  for  the  management  of  pri- 
vate property  according  to  the  will  of  the  donors.  They 
are  private  corporations.  A  college  is  as  much  a  private 
corporation,  as  an  hospital ;  especially,  a  college,  founded 
as  this  was,  by  private  bounty.  A  college  is  a  charity. — 
"  The  establishment  of  learning,"  says  lord  Hardwicke,  "  is 
a  charity,  and  so  considered  in  the  statute  of  Elizabeth.  A 
devise  to  a  college,  for  their  benefit,  is  a  laudable  charity, 
and  deserves  encouragement" (11). 

The  legal  signification  of  a  charily  is  derived  chiefly  from 
the  statute  43  Eliz.  ch.  4.  "  Those  purposes,"  says  sir 
William  Grant,  "  are  considered  charitable  which  that  stat- 
ute enumerates"(l  2).  Colleges  are  enumerated,  as  chari- 
ties  m  that  statute.  The  government,  in  these  cases,  lends 
its  aid  to  perpetuate  the  beneficent  intention  of  the  donor,  by- 
granting  a  charter,  under  which  his  private  charity  shall  con- 
tinue to  be  dispensed,  after  his  death.       This  is  done  either 

i'10)  1  Klack.  ATI. 
(U)  I  Vt-s.  557. 
(V2)<J  Ves.  .Tun.  505. 


SUPREME  COURT,  UNITED  STATES.  249 

by  incorporating  the  objects  of  the  charity,  as  for  instance, 
the  scholars  in  a  college,  or  the  poor  in  an  hospital  ;  or  by 
incorporating  those  who  are  to  be  governours,  or  trustees  of 
the  charity(13).  In  cases  of  the  first  sort  the  founder  is, 
by  the  common  law,  visitor.  In  early  times  it  became  a 
maxim,  that  he  who  gave  the  property,  might  regulate  it  in 
futiire.  Cujus  est  dare,  ejus  est  disponcre.  This  right  of 
visitation  descended  from  the  founder  to  his  heir,  as  a 
right  of  property,  and  precisely  as  his  other  property  went 
to  his  heir  ;  and  in  default  of  heirs,  it  went  to  the  king,  as 
all  other  property  goes  to  the  king  for  the  want  of  heirs. — 
The  right  of  visitation  arises  from  the  property.  It  grows 
out  of  the  endowment.  The  founder  may,  if  be  please,  part 
with  it,  at  the  time  when  he  establishes  the  charity,  and  may 
vest  it  in  others.  Therefore  if  he  choeses  that  governours, 
trustees  or  overseers  should  be  appointed  in  the  charter,  he 
may  cause  it  to  be  done,  and  his  porvet  of  visitation 
will  be  iransfered  to  them,  instead  of  descending  to  his 
heirs.  The  persons  thus  assigned  or  appointed  by  the 
founder  will  be  visitors,  with  all  the  powers  of  the  founder, 
in  exclusion  of  his  heir(14).  The  right  of  visitation  then 
accrues  to  them,  as  a  matter  of  property,  by  the  gift,  trans- 
fer or  appointment  of  the  founder.  This  is  a  private  right, 
which  they  can  assert  in  all  legal  modes,  and  in  which  they 
have  the  same  protection  of  the  law  as  in  all  other  rights. 
As  visitors  they  may  make  rules,  ordinances  and  statutes, 
and  alter  and  repeal  them,  as  far  as  permitted  so  to  do  by 
the  charter(15).  Although  the  charter  proceeds  from  the 
crown,  or  the  government,  it  is  considered  as  the  will  of  the 
donor.  It  is  obtained  at  his  request.  He  imposes  it  as 
the  rule  which  is  to  prevail  in  the  dispensation  of  his  hounty 
in  all  future  times.  The  king,  or  government,  which  grants 
the  charter  is  not  thereby  th^  founder,  but  he  who  furnishes 

(i.,)  1  \Vwnl.  474. 
(1  i)  1  Mack.  471. 
(15)  2  Term  R»t>  ■:■'■'■      5 


-50  DARTMOUTH  COLLEGE  VS.  WOODWARD. 

1hc  funds.  The  gift  of  the  revenues  is  the  foundation(lC). 
The  leading  case  on  this  subject  is  Phillips  vs.  Bury,  [re- 
ported in  1  Lord  Raymonds. — Comb.  265. — Holt 7 15. — 1 
Show.  360.— 4  Mod.  106.— Skinn.  447.]  This  was  an 
ejectment,  brought  to  recover  the  rectory  house,  &c.  of 
Exeter  College,  in  Oxford.  The  question  was  whether  the 
plaintiff  or  defendant  was  legal  rector.  Exeter  college  was 
founded  by  an  individual,  and  incorporated  by  a  charter 
granted  by  Queen  Elisabeth.  The  controversy  turned 
upon  the  power  of  the  visitor,  and  in  the  discussion  of 
the  cause,  the  nature  of  college  charters  and  corpora- 
tions was  very  fully  considered.  Lord  Holt's  judgment, 
copied  from  his  own  manuscript,  is  in  2  Term.  Rep. 
346.  The  following  is  an  extract :  "  That  we  may  the  bet- 
ter apprehend  the  nature  of  a  visitor,  we  are  to  consider, 
that  there  are  in  law  two  sorls  of  corporations  aggregate  ; 
such  as  are  for  publick  government,  and  such  as  are  for  pri- 
vate charity.  Those  that  are  for  the  publick  government  of  a 
town,  city,  mystery,  or  the  like,  being  for  publick  advantage, 
are  to  be  governed  according  to  the  laws  of  the  land  ;  if 
they  make  any  particular  private  laws  and  constitutions,  the 
validity  and  justice  of  them  is  examinable  in  the  king's 
courts  ;  of  these  there  are  no  particular  private  founders, 
and  consequently  no  particular  visitor;  there  are  no  patrons 
of  these  ;  therefore  if  no  provision  be  in  the  charter  how 
the  succession  shall  continue,  the  law  supplieth  the  defect 
of  that  constitution,  and  saith  it  shall  be  by  election  ;  as 
mayor,  aldermen,  common  council,  and  the  like.  But  pri- 
vate and  particular  corporations  for  charity,  founded  and 
endowed  by  private  persons,  are  subject  to  the  private  gov- 
ernment of  those  who  erect  them  ;  and,  therefore,  if  there 
be  no  visitor  appointed  by  the  founder,  the  law  appoints  the 
founder  and  his  heirs  to  be  visitors,  who  are  to  act  and  pro- 
ceed according  to  the  particular  laws  and  constitutions   as 

rtc.) :  BiccV-.  48i 


SUPERIOR  COURT,  NEW-HAMPSHIRE.  L'iil 

signed  them  by  the   founder.     It  is   now  admitted  on    all 
hands,  that  the  founder  is  patron,  and,  as  founder,  is  visitor, 
if  no  particular  visitor  be  assigned.     So  that  patronage  and 
visitation  are  necessary  consequents  one  upon  another  ;  for 
this  visitatorial  power  was  not  introduced  by   any  canons  or 
constitutions  ecclesiastical  (as  was  said  by  a  learned  gentle- 
man  whom  I  have  in  my  eye,  in  his  argument  of  this  case  :i 
it  is  an  appointment  of  law  ;  it    ariseth   from  the   property 
which  the  founder  had  in  the  lands  assigned   to  support  the 
charity  ;  and  as  he  is  the  author  of  the  charity,  the  law  gives 
him  and  his  heirs  a  visitatorial  power,    that  is,  an  authority 
to  inspect  the   actions   and    regulate   the  behaviour   of  the 
members  that  partake  of  the  charily  ;  for  it  is  fit  the  mem- 
bers that  are  endowed,  and  that  have  the  charily  bestowed 
upon  them,  should  not  be  left  to  themselves,  but  pursue  the 
intent  and  design  of  him  that  bestowed  it  upon  them.     Now 
indeed,  where  the  poor,  or  those  that  receive  the  charily,  are 
not    incorporated,  but  there  are  certain  trustees  who  dis- 
pose of  the  charity,  there  is  no  visitor  ;  because  the  inter- 
est of  the  revenue  is  not  vested  in  the  poor  that  have  the  ben- 
efit of  the  charity,  but  they  are  subject  to  the  orders  and  di- 
rections of  the  trustees.     Rut  where  they   who  are  to  enjoy 
the  benefit  of  the  charity  are  incorporated,  there  to  prevent 
all  perverting  of  the  charity,  or  to  compose  differences  that 
may  happen  among  them,  there  is  by  law  a  visitatorial  pow- 
er ;  and  it  being  a  creatine   of  the   founder's  own,  it  is  rea- 
son that  he  and  his  heirs  should  have   (hut  power,  unless  by 
the  founder  it  is   vested    in  some  other.       Now  there   is  no 
manner  of  difference  between  a  college  and   an  hospital,  ex- 
cept only  in  degree  ;  an  hospital    is   for  those  that  are  poor, 
and  mean,  and  low,  and  sickly  :  a  college  is  fov  another  sort 
of  indigent  persons  ;  but  ii  hath   another   intent,  to  study  in. 
and  breed  up  persons  in  (he  world,   that    have  no  otherwise 
to  live  ;  but  still  it  is  as  much  within  I  he  reasons  as  hospital- 
\v,(]  if  in  at!  hospital  tin-  rubier  and   poor  are  incorporated 


252  DARTMOUTH  COLLEGE  VS.  WOODWARD. 

it  is  a  college  having  a  common  seal  to  act  by,  although  it 
hath  not  the  name  of  a  college,  (which  always  supposeth  a 
corporation)  because  it  is  of  an  inferiour  degree j  and  in  the 
one  case  and  in  the  other  there  must  be  a  visitor,  either  the 
founder  and  his  heirs,  or  one  appointed  by  him  ;  and  both 
are  eleemosynary."  Lord  Holt  concludes  his  whole  argu- 
ment by  again  repeating,  that  that  college  was  a  private 
corporation,  and  that  the  founder  had  a  right  to  appoint  a 
visitor,  and  to  give  him  such  power  as  he  saw  fit(l7). 

The   learned    Bishop     Slillingfleet's    argument    in    the 
same   cause   as    a    member  of  the  house  of  lords,   when 
it  was   there    heard,  exhibits    very  clearly  the    nature  of 
colleges   and  similar  corporations.     It  is  to  the   following 
effect.      "  That    this  absolute   and    conclusive  power  of 
visitors,  is  no  more  than  the  law   hath  appointed  in  other 
cases,   upon    commissions    of  charitable   uses  :    that     the 
common  law,  and  not  any  ecclesiastical  canons,  do  place 
the  power  of  visitation  in  the  founder  and  his  heirs,  unless 
he  settle  it  upon  others :  that  although  corporations  for  pub- 
lick  government  he  subject  to  the  courts  of  Westminster- 
Hall,  which  have  no  particular,  or  special  visitors  ;  yet  cor- 
porations for  charity,  founded  and  endowed  by  private  per- 
sons, are  subject  to  the  rule  and  government  of  those  that 
erect  thera  ;  but  where  the  persons  to  whom  the  charity  is 
given  are  not  incorporated,  there  is  no  such  visitatorial  pow- 
er, because  the  interest  of  the   revenue  is  not  invested  in 
them ;  but  where   they  are^   the  right  of  visitation  ariseth 
from  the  foundation,  and  the  founder  may  convey  it  to  whom 
and  in  what  manner  he  pleases ;  and   the  visitor  acts  as 
founder,  and  by  the  same  authority  which  he  had,  and  con- 
sequently is  no  more  accountable  than  he  had  been:  thai 
the  king  by  his  charter  can  make  a  society  to  be  incorporat 
ed  so  as  to  have  the  rights   belonging  to  persons,  as  to  legal 
Rapacities  :  that  colleges,  although  founded  by  private  per 

(17)  1  Lcul  Hay.  9. 


SUPREME  COURT,  UNITED  STATES.  253 

sons,  arc  jet  incorporated  by  the  king's  charter;  but  although 
the  kings  by  their  charter  made  the  colleges   to  be  such  in 
law,  thaf  is,  to  be  legal  corporations,  yet  they  left  to  the  par- 
ticular founders   authority   to  appoint  what  statutes   they 
thought  fit  for  the  regulation   of  them.     And  not  only  the 
statutes,  but  the  appointment  of  visitors  was  left  to  them 
and  the  manner  of  government,  and  the  several  conditions, 
on  which  any  persons  were  to  be  made  or  continue  partak- 
ers of  their  bounty  (13).     These  opinions  received  the  sanc- 
tion of  the  house  of  lords,  and  they  seem  to  be  settled    and 
undoubted  law.     Where  there  is   a  charter,  vesting  prop- 
er powers    in    trustees,    or    governours,    they    are    visi- 
tors ;  and   there   is  no  controul    in  any  body  else  ;  except 
only  that  the  courts  of  equity  or  of  law  will  interfere  so  far 
as  to  preserve  the  revenues  and  prevent  the  perversion  of  the 
funds  and  to  keep  the  visitors  within  their  prescribed  bounds. 
"  If  there  be    a    charter  with  proper    powers,    the   charity 
must  be  regulated  in  the  manner  prescribed  by  the  charter. 
There  is  no  ground   for   the  controlling    interposition  of  the 
courts  of  chancery.     The  interposition  of  the  courts  there- 
fore, in  those  instances  in  which  the  charities  were  founded 
on  charters  or  by   act  of  parliament,  and  a  visitor,  or  gov- 
ernour  ond  trustees  appointed,  must  be  referred  to  the  gen- 
eral jurisdiction  of  the   courts   in  all   cases  in   which  a  trust 
conferred  appears  to  have  been  abused,  and  not  to  an  orig- 
inal right  to  direct  the  management  of  the  charity,   or  \he 
conduct  of  the  governours  or  trustees (19)." — "  The  origi- 
nal of  all   visitatorial  power  is  the    property  of  the    donor, 
and  the  power   every  one  has  to   dispose,  direct  and    regu- 
late  his  own   property;  like    the    case  of  patronage;  cvjus 
est  dare,  &c.    Therefore,  if  cither  the  crown   or  the  subject 
creates  an  eleemosynary  foundation,  and    vests  flu  charity 
in  the  persons  rvho  arc  to  receive  the  benefit  of  it,    since  a 
'ontest  might  arise  about  the  government  of  if.  the  Utr:  •' 

(IS)^p'-  Appendix  No.  .3.    1  Hum'?  Ecclr;    Law  41.3 

l'O  2  Font-   '.'"-      f«. 


25-1  DARTMOUTH  COLLEGE  VS.  WOODWARD. 

lows  the  founder  or  his  heirs,  or  the  person  specially  ap- 
pointed by  him  to  be  visitor,  to  determine  concerning  his 
own  creature.  If  the  charily  is  not  vested  in  the  persons, 
who  are  to  partake,  but  in  trustees  for  their  benefit,  no 
visitor  can  arise  by  implication,  but  the  trustees  have  that 
power  (20)." 

"  There  is  nothing  better  established,"  says  lord  com- 
missioner Eyre,  "  than  that  this  court  does  not  entertain  a 
general  jurisdiction,  or  regulate  and  controul  charities  estab 
lished  by  charter.  There  the  establishment  is  fixed  and  de- 
termined ;  and  the  court  has  no  power  to  vary  it.  If  the 
governours  established  for  the  regulation  of  it,  are  not  those 
who  have  the  management  of  the  revenue,  this  court  has  no 
jurisdiction,  and  if  it  is  ever  so  much  abused  as  far  as  it  re- 
spects the  jurisdiction  of  this  court,  it  is  without  remedy  ; 
but  if  those  established  as  governours,  have  also  the  man- 
agement of  the  revenues,  this  court  does  assume  a  jurisdic- 
tion of  necessity,  so  far  as  they  are  to  be  considered  as  trus- 
tees of  the  revenue(21)." 

"  The  foundations  of  colleges,'*  says  lord  Mansfield,  "are 
to  be  considered  in  two  views,  viz.  as  they  are  corporations 
and  as  they  are  eleemosynary.  As  eleemosynary,  they  are 
the  creatures  of  the  founder;  he  may  delegate  his  pow- 
er, either  generally  or  specially  ;  he  may  prescribe  particular 
modes  and  manners,  as  to  the  exercise  of  part  of  it.  If  he 
makes  a  general  visitor,  (as  by  the  general  words  visitator 
sit)  the  person  so  constituted  has  all  incidental  po'.ver;  but 
lie  may  be  restrained  as  to  particular  instances.  The  foun- 
der may  appoint  a  special  visitor  for  a  particular  purpose 
arid  no  further.  The  founder  may  make  a  general  visitor  ; 
and  yet  appoint  an  inferiour  particular  power,  to  be  execut- 
ed without  going  to  the  visitor  in  the  first  instance" (22). 
And  oven  it'  the  king  be  founder,  if  he  grant  a   charter,  iu- 

'  2  ■■■    lV<>.4r2.    C  wven  vs.  Iluthcrforth,  per  Lord  Hardwicke* 

."■J I  }  Aifoi  \u\    Central  *. s.  Foundling  hospital-  2  Ves.  Junv.   47-  Vide   a!?o 

12  ly  rl  oil  Cor;  -vatic,.;-.,  195.     Cooper's  Equity  Pleading,  292. 
,  -' . '.  '-'    ■'■'>:,-'     '.      -.  ..'jtinbv'iijre  \=  To<'in'-tou    1  Burr.    ~<)V. 


SUPREME  COURT,  UNITED  STATES.  253 

corporating  trustees  and  governours,f/iet/  are  visitors,znd  the 
king  cannot  visit(23).  A  subsequent  donation,  or  engrafted 
fellowship,  falls  under  the  same  general  visitatorial  power,  if 
not  etherwise  specially  provided (*24). 

In  New   England,   and    perhaps   throughout  the  United 

States,  eleemosynory  corporations  have  been  generally  es- 
tablished in  the  latter  mode  ;  that  is,  by  incorporating  gov- 
ernours,  or  trustees,  and  vesting  in  them  the  right  of  visita- 
tion. Small  variations  may  have  been  in  some  instances 
adopted  ;  as  in  ihe  case  of  Harvard  College,  where  some 
power  of  inspection  is  given  to  the  overseers,  but  not  strict- 
ly speaking,  a  visitatorial  power,  which  still  belongs,  it  is 
apprehended  to  the  fellows,  or  members  of  the  corporation. 
In  general,  there  are  many  donors.  A  charter  i3  obtained, 
comprising  them  all,  or  some  of  them,  and  such  others  as 
they  choose  to  include,  with  the  right  of  appointing  their 
successors.  They  are  thus  the  visitors  of  their  own  charity 
and  appoint  others,  such  as  they  may  see  fit,  to  exercise  the 
same  office  in  time  to  come.  All  such  corporations  are  pri- 
vate. The  case  before  the  court  is  clearly  that  of  an  elee- 
mosynary corporation.  It  is,  in  the  strictest  legal  sense  a 
private  charity.  In  King  vs.  St.  Catherine's  Hall (20), 
that  college  is  called  a  private  eleemosynary  lay  corpo- 
ration. It  was  endowed  by  a  private  founder,  and  in 
corporated  by  letters  patent.  And  in  the  same  manner  was 
Dartmouth  College  founded  and  incorporated.  Dr.  Whcc- 
lock  is  declared  by  the  charter  to  be  its  founder.  It  was  es- 
tablished by  him,  on  funds  contributed  and  collected  by 
himself. 

As  such  founder,  he  had  a  right  of  visitation,  which  he 
assigned  to  the  trustees,  and  they  received  it  by  his  consent 
and  appointment,  and  held  it    under  the    charter(26).     U»* 

('2,i)  \ttorn  -v  General  vs.  Miildli  ton,  2  Ves.  ,V28. 

(\i-i)  (jrcun  vs.  Kutln:i-forlli,  tilii  sti|>r:i.     '-"   .''->••'     '     ''•;■•   i      T    II  .   ■    ■ 
nlii  supra. —  \  id-'  Appendix  No 

'.:>)  iT.in.  it.  ■-.  ar>.i. 

>.i  ,    1)1  ,i  !.     ul.i  %uur 


256  DARTMOUTH  COLLEGE  VS.  WOODWAUI). 

appointed  these  trustees  visitors,  and  in  that  respect  to  take 
place  of  his  heir  ;  as  he  might  have  appointed  devisees,  to 
take  his  estate  instead  of  his  heir.  Little,  probably,  did  he 
tfaiuk  at  that  time,  that  the  legislature  would  ever  take  away 
this  property  and  these  privileges,  and  give  them  to  others. 
Little  did  he  suppose,  that  this  charter  secured  to  him  and 
his  successors  no  legal  rights.  Little  did  the  other  donors 
think  bo.  If  they  had,  the  college  would  have  been,  what 
the  university  is  now,  a  thing  upon  paper,  existing  only  in 
name. 

The  numerous  academies  in  New-England  have  been 
established  substantially  in  the  same  manner.  They  hold 
their  property  by  the  same  tenure,  and  no  other.  Nor  has 
Harvard  colIege(2f)  any  surer  title  than  Dartmouth  college. 
It  may,  to-day,  have  more  friends  ;  but  to-morrow  it  may 
have  more  enemies.  Its  legal  rights  are  the  same.  So  also 
of  Yale  College  (28) ;  and  indeed  of  all  the  others.  When  the 
legislature  gives  to  these  institutions,  it  may  and  does  accom- 
pany its  grants  with  such  conditions  as  it  pleases.  The 
grant  of  lands  by  the  legislature  of  New  Hampshire  to 
Dartmouth  college,  in  1789,  was  accompanied  with  various 
conditions.  When  donations  are  made,  by  the  legislature, 
or  others,  to  a  charity  already  existing,  without  any  condi- 
tion, or  the  specification  of  any  new  use,  the  donation  fol- 
lows the  nature  of  the  charity.  Hence  the  doctrine,  that  all 
eleemosynary  corporations  are  private  bodies.  They  are 
founded  by  private  persons,  and  on  private  property.  The 
publick  cannot  be  charitable  in  these  institutions.  It  is  not 
the  money  of  the  publick,  but  of  private  persons,  which  is 
dispensed.  It  may  be  publick,  that  is  general,  in  its  uses 
and  advantages  ;  and  the  state  may  very  laudably  add  con- 
tributions of  its  own  to  the  funds  ;  but  it  is  still  private  in 
the  tenure  of  the  property,  and  in  the  right  of  administering 
'he  funds. 

(27)  Vide  Appendix  No.  5 
ftH)  Vide  Appendix  No  R. 


SUPREME  COURT,  UNITED  STATES.  25f 

If  the  doctrine  laid  down  by  lord  Holt,  and  the  house  of 
lords  in  Phillips  vs.  Bury,  and  recognized  and  established  in. 
all  the  other  cases,  be  correct,  the  property  of  this  college 
was  private  property  ;  it  was  vested  in  the  trustees  by  the 
charter,  and  to  be  administered  by  them,  according  to  the 
will  of  the  founder  and  donors  as  expressed  in  the  char- 
ter. They  were  also  visitors  of  the  charity,  in  the  most 
ample  sense.  They  had  therefore,  as  they  contend,  privi- 
leges, property,  and  immunities,  within  the  true  meaning  of 
the  bill  of  rights.  They  had  rights,  and  still  have  them, 
which  they  can  assert  against  the  legislature,  as  well  as 
against  other  wrong-doers.  It  makes  no  difference,  that  the 
estate  is  holden  for  certain  trusts.  The  legal  estate  is  still 
theirs.  They  have  a  right  in  the  property,  and  they  have 
a  right  of  visiting  and  superintending  the  trust  ;  and  this  is 
an  object  of  legal  protection,  as  much  as  any  other  right. 
The  charter  declares  that  the  powers  conferred  on  the  trus- 
tees are  privileges,  advantages,  liberties,  and  immunities;" 
and  that  they  shall  be  forever  holden  by  them  and  their  suc- 
cessors. The  New-Hampshire  bill  of  rights  declares  that 
no  one  shall  be  deprived  of  his  "  property,  privileges  or  im- 
munities," but  by  judgment  of  his  peers,  or  the  law  of  the 
land.  The  argument  on  the  other  side  is,  that  although 
these  terms  may  mean  something  in  the  bill  of  rights,  they 
mean  nothing  in  this  charter.  But  they  are  terms  of  legal 
signification,  and  very  properly  used  in  the  charter.  They 
are  equivalent  with/ranc/tises.  Blackstone  says  that  fran- 
chise  and  liberty  are  used  as  synonymous  terms.  And  after 
enumerating  other  liberties  and  franchises,  he  says,  "  it  is 
likewise  a  franchise  for  a  number  of  persons  to  be  incorpo- 
rated and  subsist  as  a  body  politick  ;  with  a  power  to  main- 
tain perpetual  succession  and  do  other  corporate  acts  :  and 
each  individual  member  of  such  corporation  is  also  said 
to  have  a  franchise  or  freedom"  (29). 

(I'i)  2  Black.  Cora.  37 

34 


258       DARTMOUTH  COLLEGE  VS.  WOODWARD. 

Liberties  is  the  term  used  in  magna  charta  as  including 
franchises,  privileges,  immunities,  and  all  the  rights  whicB 
belong  to  that  class.     Professor  Sullivan  says,  the  term  sig- 
nifies the  "privileges  that   some  of  the   subjects,  whether 
single  persons  or  bodies    corporate,  have  above  others  by 
the  lawful  grant  of  the  king  ;  as  the  chattels   of  felons  or 
outlaws,  and  the  lands  and  privileges  of  corporations" (30). 
The  privilege,  then,  of  being  a  member  of  a  corporation, 
under  a  lawful  grant,  and  of  exercising  the  rights  and  pow- 
ers of  such  member,  is  such  a  privilege,  liberty  or  franchise, 
as  has  been  the  object  of  legal   protection,    and  the  subject 
of  a  legal  interest,  from  the  time  of  magna  charta  to   the 
present  moment.  The  plaintiffs  have  such  an  interest  in  this 
corporation,  individually,  as  they  could  assert  and  maintain 
in  a  court  of  law,  not  as  agents  of  the  publick,  but   in  their 
own  right.     Each  trustee  has  a  franchise,  and  if  he  be  dis- 
turbed in  the  enjoyment   of  it,    he  would  have  redress,  on 
appealing  to  the   law,  as  promptly  as  for  any  other  injury. 
If  the  other  trustees  should  conspire  against  any  one  of  them 
to  prevent  his  equal  right  and  voice  in  the  appointment  of 
a  president  or  professor,  or  in  the  passing  of  any  statute  or 
ordinance  of  the  college,  he  would  be  entitled  to  his  action, 
for  depriving  him  of  his  franchise.     It  makes  no  difference, 
that  this  property  is  to  be  holden  and  adrainistered,and  these 
franchises  exercised   for  the  purpose  of  diffusing  learning. 
No  principle  and  no  case   establishes  any  such    distinction. 
The  publick  may  be  benefitted  by  the  use  of  this  property. 
But  this  does  not  change  the  nature  of  the  properly,  or   the 
rights  of  the  owners.  The  objectof  the  charter  may  be  publick 
good  ;  so  it  is  in  all   other  corporations  ;  and  this  would  as 
well  justify  the  resumption  or  violation  of  the  grant  in  any 
other  case  as  in  this.     In  the  case  of  an  advowson,  the  use 
is  public  k,  and  the  right  cannot  be   turned    to  any  private 
benefit  or    emolument.     It   is  nevertheless  a   legal  private 

(30)  Sull.  -list  I.ect 


SUPREME  COURT,  UNITED  STATES.  259 

right,  and  the  property  of  the  owner,  as  emphatically  as  his 
freehold.  The  rights  and  privileges  of  trustees,  visitors,  or 
governours  of  incorporated  colleges,  stand  on  the  same 
foundation.  They  are  so  considered,  both  by  lord  Holt 
and  lord  Hardwicke(31). 

To  contend  that  the  rights  of  the  plaintiffs  may  be  taken 
away,  because  they  derive  from  them  no  pecuniary  benefit, 
or  private  emolumenr,  or  because  they  cannot  be  transmit- 
ted to  their  heirs,  or  would  uot  be  assets  to  pay  their  debts, 
is  taking  an  extremely  narrow  view  of  the  subject.  Ac- 
cording to  this  notion,  the  case  would  be  different,  if,  in  the 
charter,  they  had  stipulated  for  a  commission  on  the  dis- 
bursement of  the  funds  ;  and  they  have  ceased  to  have  any 
interest  in  the  property,  because  they  have  undertaken  to 
administer  it  gratuitously. 

It  cannot  be  necessary  to  say  much  in  refutation  of  the 
idea,  that  there  cannot  be  a  legal  interest,  or  ownership,  in 
any  thing  which  does  not  yield  a  pecuniary  profit ;  as  if  the 
law  regarded  no  rights  but  the  lights  of  money,  and  of  visi- 
ble tangible  property.  Of  what  nature  are  all  rights  of  suf- 
frage ?  No  elector  has  a  particular  personal  interest  ;  but 
each  has  a  legal  right,  to  be  exercised  at  his  own  discretion 
and  it  cannot  be  taken  away  from  him.  The  exercise  of  this 
right  directly  and  very  materially  affects  the  publick  ;  much 
more  so  than  the  exercise  of  the  privileges  of  a  trustee  of 
this  college.  Consequences  of  the  utmost  magnitude  may 
sometimes  depend  on  the  exercise  of  the  right  of  suffrage  by 
one  or  a  few  electors.  Nobody  was  ever  yet  heard  to  con- 
tend, however,  that  on  that  account  the  publick  might  take 
away  the  right  or  impair  it.  This  notion  appears  t»  be 
borrowed  from  no  better  source  than  the  repudiated  doc- 
irine  of  the  three  judges  in  the  Aylesbury  case(32).  That 
was  an  action    against  a   returning    officer   for  refusing    the 

(.31)  Phillips  vs.  Hurv. — Grcr-n   v-;.  Ii'.it la :i forth,  ubi  yipra. — Vi<Ie  also  '.'. 
Hhck.  Jl. 

.  :■'.)  A  -ill'-.  v«   '.Villi-.  1  I  j,->\  H:«v    WS 


260  DARTMOUTH  COLLEGE  VS.  WOODWARD. 

plaintiff's  vote,  in  the  election  of  a  member  of  parliament. — 
Three  of  the  judges  of  the  king's  bench  held,  that  the  ac- 
tion could  not  be  maintained,  because  among  other  objec- 
tions, "  it  was  not  any  mailer  of  profit,  either  in  presmti, 
or  infuturo."  It  would  not  enrich  the  plaintiff,  in  presen- 
ti, nor  would  it,  infuturo,  go  to  his  heirs,  or  answer  to  pay 
his  debts.  But  lord  Holt  and  the  house  of  lords  were  of 
another  opinion.  The  judgment  of  the  three  judges  was 
reversed,  and  the  doctrine  they  held,  having  been  exploded  ♦ 
for  a  century,  seems  now  for  the  first  time  to  be  re- 
vived. 

Individuals  have  a  right  to  use  their  own  property  for 
purposes  of  benevolence,  either  towards  the  publick,  or  to- 
wards other  individuals.  They  have  a  right  to  exercise 
this  benevolence  in  such  lawful  manner  as  they  may  choose  ; 
and  when  the  government  has  induced  and  excited  it,  by 
contracting  to  give  perpetuity  to  the  stipulated  manner  of 
exercising  it,  to  rescind  this  contract,  and  seize  on  the 
property,  is  not  law,  but  violence.  Whether  the  state  will 
grant  these  franchises,  and  under  what  conditions  it  will 
grant  them,  it  decides  for  itself.  But  when  once  granted, 
the  constitution  holds  them  to  be  sacred,  till  forfeited  for 
just  cause. 

That  all  property,  of  which  the  use  may  be  beneficial  to 
the  publick,  belongs  therefore  to  the  publick,  is  quite  a  new 
doctrine.  It  has  no  precedent,  and  is  supported  by  no  known 
principle.  Dr.  Wheelock  might  have  answered  his  pur- 
poses, in  this  ca3e,  by  executing  a  private  deed  of  trust. — 
He  might  have  conveyed  his  property  to  trustees,  for  pre- 
cisely such  uses  as  are  described  in  this  charter.  Indeed  it 
appears,  that  he  had  contemplated  the  establishingof  his  school 
in  thatmanner,  and  had  made  his  will,  anddevised  the  property 
to  the  same  persons  who  were  afterwards  appointed  trustees 
in  the  charier.  Many  literary  and  other  charitable  institutions 
are  founded  in  that  manner,  and  the   trust  is    renewed,  and 


SUPREME  COURT,  UNITED  STATES.  261 

conferred  on  other  persons,  from  lime  to  time,  as  occasion 
may  require.  In  such  a  case,  no  lawyer  would  or  could  say 
that  Ihe  legislature  might  divest  the  trustees,  constituted  by 
deed  or  will,  seize  upon  the  property,  and  give  it  to  other 
persons,  for  other  purposes.  And  does  the  granting  of  a 
charter,  which  is  only  done  to  perpetuate  the  trust  in  a  more 
convenient  manner  make  any  difference  1  Does  or  can  this 
change  the  nature  of  the  charity,  and  turn  it  into  a  publick 
political  corporation  ? — Happily  we  are  not  without  auihori- 
ty  on  this  point.  It  has  been  considered  and  adjudged. 
Lord  Hardvvicke  says,  in  so  many  words,  "  the  charter  of 
the  crown  cannot  make  a  charity  more  or  less  publick,  but 
only  more  permanent  than  it  would  otherwise  be(03). 

The  granting  of  the  corporation  is  but  making  the  trust 
perpetual,  and  does  not  after  the  nature  of  the  charity.  The 
very  object  sought  in  obtaining  such  charter,  and  in  giving 
property  to  such  a  corporation,  is  to  make  and  keep  it  pri- 
vate property,  and  to  clothe  it  with  all  the  security  and  in- 
violability of  private  property.  The  intent  is,  that  there 
shall  be  a  legal  private  ownership,  and  that  the  legal  own- 
ers shall  maintain  and  protect  the  property,  for  the  benefit 
of  those  for  whose  u-se  it  was  designed.  "Who  ever  endow- 
ed the  publick?  Whoever  appointed  a  legislature  toad- 
minister  his  charity  ?  Or  who  ever  heard,  before,  that  a  gift 
to  a  college,  or  hospital,  or  an  asylum,  was,  in  reality,  noth- 
ing but  a  gift  to  tb.e  state. 

The  state  of  Vermont  is  a  principal  donor  to  Dartmouth 
College.  The  lands  given  lie  in  that  state.  This  appears 
in  the  special  verdict.  Is  Vermont  to  be  considered  as 
having  intended  a  gift  to  the  state  of  New-Hampshire  in  this 
case  ;  as  it  has  been  said  is  to  be  \he  reasonable  construc- 
tion of  all  donations  to  the  college  ?  The  legislature  of  New- 
Hampshire  affects  to  represent  the  publick,  and  therefore 
claims  a  right  to  controul    all  properly    destined  to  pubiicii 

•'■>') -i  ^k.  S7     \Hn:u'-\  Ck-riri'.-.!  >".    IVavcc. 


262  DARTMOUTH  COLLEGE  VS.  WOODWARD. 

use.  What  hinders  Vermont  from  considering  herself  equal* 
\y  the  representative  of  the  publick,  and  from  resuming  her 
grants,  at  her  own  pleasure?  Her  right  to  do  so  is  less  doubt- 
ful than  the  power  of  New-Hampshire  to  pass  the  laws  in 
question. 

In  University  vs.  Foy(34)  the  supreme  court  of  North- 
Carolina  pronounced  unconstitutional  and  void,  a  law  repeal- 
ing a  grant  to  the  University  of  North-Carolina  ;  although 
that  university  was  originally  erected  and  endowed  by  a  stat- 
ute of  the  state.  That  case  was  a  grant  of  lands,  and  the 
courtdecided  that  it  could  not  be  resumed.  This  is  the  grant 
of  a  power  and  capacity  to  hold  lands.  Where  is  the  dif- 
ference of  the  cases,  upon  principle  ? 

In  Terrett  vs.  TayIor(35)  this  court  decided,  that  a  le- 
gislative grant  or  confirmation  of  lands,  for  the  purposes  of 
moral  and  religious  instruction  could  no  more  be  rescinded 
than  other  grants.  The  nature  of  the  use  was  not  holden 
to  make  any  difference.  A  grant  to  a  parish  or  church, 
for  the  purposes  which  have  been  mentioned,  cannot  be 
distinguished,  in  respect  to  the  title  it  confers,  from  a  grant 
to  a  college  for  the  promotion  of  piety  and  learning.  To 
the  same  purpose  may  be  cited  the  case  of  Pawlett  vs.Clark. 
The  state  of  Vermont,  by  statute  in  1794,  granted  to  the 
respective  towns  in  that  state,  certain  glebe  land*  lying 
within  those  towns  for  the  sole  use  and  support  of  re- 
ligious worship.  In  1799,  an  act  was  passed  to  repeal 
the  act  of  1794  ;  but  this  court  declared,  that  the  act  of 
1794,  "  so  far  as  it  granted  the  giebes  to  the  towns,  could 
not  afterwards  be  repealed  by  the  legislature,  so  as  to  di- 
vest the  rights  of  the  towns  under  the  grant" (3d). 

It  will  be  for  the  other  side  to  shew,  that  the  nature  of  the 
use,  decides  the  question,  whether  the  legislature  has  power 
to  resume    its  grants.     It  will  be  for    those,    who    maintain 

(34)  2  Haywood's  Rep. 

(35)  9  Crancli  43. 

(36)  1)  Crunch  292. 


SUPREME  COURT,  UNITED  STATE3.  263 

sach  a  doctrine,  to  shew  the  principles  and  cases  upon 
which  it  rests.  It  will  be  for  them  also  to  fix  the  limits  and 
boundaries  of  their  doctrine,  and  to  shew,  what  are  and  what 
are  not,  such  uses  as  to  give  the  legislature  this  power  of  re- 
sumption and  revocation.  And  to  furnish  an  answer  to  the 
cases  cited,  it  will  be  for  there  further  to  shew,  that  a  grant 
for  the  use  and  support  of  religious  worship,  stands  on  other 
ground  than  a  grant  for  the  promotion  of  piety  and  learning. 

I  hope  enough  has  been  said  to  shew,  that  the  trustees 
possessed  vested  liberties,  privileges,  and  immunities,  un- 
der this  charter  4  and  that  such  liberties,  privileges  and 
immunities,  being  once  lawfully  obtained  and  vested,  are  as 
inviolable  as  any  vested  rights  of  property  whatever. — 
Rights  to  do  certain  acts,  such,  for  instance,  as  the  visitation 
and  superintendance  of  a  college  and  the  appointment  of  its 
officers,  may  surely  be  vested  rights,  to  all  legal  intents,  as 
completely  as  the  right  to  possess  property.  A  late  learn- 
ed judge  of  this  court  has  said,  when  I  say  that  a  right  is 
vested  in  a  citizen,  I  mean  that  he  has  the  power  to  do  cer- 
tain actions  ;  or  to  possess  certain  things  ;  according  to 
the  law  of  the  land(37). 

If  such  be  the  true  nature  of  the  plaintiffs'  interests 
under  this  charter,  what  are  the  articles  in  the  New-Hamp- 
shire bill  of  rights  which  these  acts  infringe  ? 

They  infringe  the  second  article;  which  says,  that  the 
citizens  of  the  state  have  a  right  to  hold  and  possess  prop- 
erty. The  plaintiffs  had  a  legal  property  in  this  charter  ; 
and  they  had  acquired  property  under  it.  The  acts  de- 
prive them  of  both.  They  impair  and  take  away  1he  char- 
ter ;  and  they  appropriate  the  property  to  now  uses,  against 
their  consent.  The  plaintiffs  cannot  now  hold  the  property 
acquired  by  themselves,  and  which  this  article  says  they 
have  a  right  to  hold. 

>')  3  Dal.  .19-j 


264  DARTMOUTH  COLLEGE  VS.  WOODWAHli. 

They  infringe  the  twentieth  article.  By  that  article 
it  is  declared,  that  in  questions  of  property,  there  is  a  right 
to  trial.  The  plaintiffs  arc  divested,  without  trial  or  judg- 
ment. 

They  infringe  the  twenty-third  article.  It  is  therein 
declared,  that  no  retrospective  laws  shall  bepassed.  This 
article  bears  directly  on  the  case.  These  acts  must  be 
deemed  to  be  retrospective,  within  the  settled  construction 
of  that  term.  What  a  retrospective  law  is,  has  been  de- 
cided on  the  construction  of  this  very  article,  in  the  circuit 
court  for  the  first  circuit.  The  learned  judge  of  that  cir- 
cuit, says,  "  every  statute  which  takes  away,  or  impairs, vest- 
ed rights,  acquired  under  existing  laws,  must  be  deemed 
retrospective" (38).  That  all  such  laws  are  retrospective, 
was  decided  also  in  the  case  of  Dash  vs.  Van  Kleek(39) 
where  a  most  learned  judge  quotes  this  article  from  the  con- 
stitution of  New-Hampshire,  with  manifest  approbation,  as 
a  plain  and  clear  expression  of  those  fundamental  and  unal- 
terable principles  of  justice,  which  must  lie  at  the  founda- 
tion of  every  free  and  just  system  of  laws.  Can  any  man 
deny  that  the  plaintiffs  had  rights,  under  the  charter,  which 
were  legally  vested,  and  that  by  these  acts,  those  rights  are 
impaired  ? 

"  It  is  a  principle  in  the  English  law,"  says  chief  justice 
Kent,  in  the  case  last  cited,  "as  ancient  as  the  law  itself,that 
a  statute,  even  of  its  omnipotent  parliament,  is  not  to  have  a 
retrospective  effect.  IS  ova  constilutio  futuris  formam 
imponere  debet,  et  non  preeter His (40).  The  maxim  in  Brac- 
ton,  was  probably  taken  from  the  civil  law,  for  we  find  in  that 
system  the  same  principle,  that  the  lawgiver  cannot  alter 
his  mind  to  the  prejudice  of  a  vested  right.  Nemo  po- 
test mutar e  concilium  suum  in  alter ius  injuriam (41).  This 

(38)  2  Gal.  10.3.  Society  vs.  Wheeler. 
(;>*))  7  Johnson's  Rep.  477. 
(■','.)  liiiicton  Lib.  4.  fol.  2'28.  2nd  Inst.  292. 
\U)   t)i<r.  50.  J  7.  75. 


SUPREME  COURT,  UNITED  STATES.  2£5 

&axim  of  Papinian  is  general  in  its  terras,  but  Dr. Taylor(42) 
applies  it  directlj  as  a  restriction  upon  the  lawgiver,  and  a 
declaration  in  the  code  leaves  no  doubt  as  to  the  sense  of 
the  civil  law.  Leges  et  constitutiones  futuris  certam  est 
dare  fortnam  negotiis,  non  ad  facta  prceterila  revocari, 
nisi  nominatim,  et  de  pmlerito  tempore,  et  adhuc  pendcn- 
tibns  negotiis  canlum  st7(43).  This  passage,  according  to 
the  best  interpretation  of  the  civilians,  relates  not  merely  to 
future  suits,  but  to  future,  as  contradistinguished  from  part 
contracts  and  vested  rights(44).  It  is,  indeed,  admitted 
that  the  prince  may  enact  a  retrospective  law,  provided  it 
be  done  expressly ;  for  the  will  of  the  prince  under  the  des- 
potism of  the  Homan  Emperors  was  paramount  to  every  ob- 
ligation. Great  latitude  was  anciently  allowed  to  legisl- 
ative expositions  of  statutes;  for  the  separation  of  the  ju- 
dicial from  the  legislative  power  was  not  then  distinctly 
known  or  prescribed.  The  prince  was  in  the  habit  of  inter- 
preting his  own  law3  for  particular  occasions.  This  was  cal- 
led the  Interlocatio  Principis  ;  and  this,  according  to  Ru- 
ber's definition,  was,  quando  principes  inter  partes  loquun- 
lur  etjus  dicunt(A')).  No  correct  civilian,  and  especially 
no  proud  admirer  of  the  ancient  republick,  (if  any  such  then 
existed)  could  have  reflected  on  this  interference  with  pri- 
vate rights  and  pending  suits  without  disgust  and  indigna- 
tion ;  and  we  are  rather  surprised  to  find  that  under  the  vio- 
lent and  irregular  genius  of  the  Roman  government,  the 
principle  before  us  should  have  been  acknowledged  and 
obeyed  to  the  extent  in  which  we  find  it.  The  fact  shews 
ihat  it  must  be  founded  in  the  clearest  justice.  Our  case 
is  happily  very  different  from  that  of  the  subjects  of  Justi- 
nian. With  us,  the  power  of  the  lawgiver  is  limited  and  de- 
fined; the  judicial  is  regarded  as  a  distinct,  independent  pow 

f\l)  Elements  of  the  Civil  Law  1G3. 
I    '  Cod.  I.  li  7. 
n)  Ptrczii  Prelect,  li.  t. 

!'■  >:!  :ct    Juiii   Civ.  vol.  '2.  54." 

3.5 


266  DARTMOUTH  COLLEGE  VS.  WOODWARD. 

cr  :  private  rights  have  been  better  understood  and  more  ex- 
alted in  public  k  estimation,  as  well  as  secured  by  provisions 
dictated  by  the  spirit  of  freedom,  and  unknown  to  the  civil 
law.  Our  constitutions  do  not  admit  the  power  assumed  by 
the  Roman  prince,  and  the  principle  we  are  considering 
is  now  to  be  regarded  as  sacred." 

These  acts  infringe  also  the  thirty-seventh  article  of  the 
constitution  of  New-Hampshire  ;  which  says,  that  the  pow- 
ers of  government  shall  be  kept  separate.  By  these  acts, 
the  legislature  assumes  to  exercise  a  judicial  power.  It 
declares  a  forfeiture,  and  resumes  franchises,  once  granted, 
without  trial  or  hearing. 

If  the  constitution  be  not  altogether  waste  paper,  it  has 
restrained  the  power  of  the  legislature,  in  these  particulars. 
If  it  has  any  meaning,  it  is,  that  the  legislature  shall  pass  no 
act  directly  and  manifestly  impairing  private  property  and 
private  privileges.  It  shall  not  judge,  by  act.  It  shall  not 
decide,  by  act.  It  shall  not  deprive,  by  act.  But  it  shall 
leave  all  these  things  to  be  tried  and  adjudged,  by  the  law 
of  the  land. 

The  fifteenth  article  has  been  referred  to  before.  It  de- 
clares that  no  one  shall  be  "deprived  of  his  property,  immu- 
nities or  privileges,  but  by  the  judgment  of  his  peers  or  the 
law  of  the  land."  Notwithstanding  the  light  in  which  the  learn- 
ed judges  in  New-Hampshire  viewed  the  rights  of  the  plaint- 
iffs under  the  charter,  and  which  has  been  before  adverted  to, 
it  is  found  to  be  admitted  in  their  opinian,that  those  rights  are 
privileges  within  the  meaning  of  this  fifteenth  article  of  the  bill 
of  rights.  Having  quoted  that  article,  they  say  :  "  that 
the  right  to  manage  the  affairs  of  this  college,  is  a  privilege 
within  the  meaning  of  this  clause  of  the  bill  of  rights,  is  not 
to  be  doubted."  In  my  humble  opinion  this  surrenders  the 
point.  To  resist  the  effect  of  this  admission,  however,  the 
learned  judges  add — "But  how  a  privilege  can  be  protected 
from  the  operation  of  the  law  of  the  land  by  a  clause  in  the 


SUPREME  COURT,  UNITED  STATES.        267 

constitution,  declaring  that  it  shall  not  be  taken  away,  but 
by  the  law  of  the  land,  is  not  very  easily  understood. " — 
This  answer  goes  on  the  ground,  that  the  acts  in  question 
are  laws  of  the  land,  within  the  meaning  of  the  constitution. 
If  they  be  so,  the  argument  drawn  from  this  article  is  fully 
answered.  If  they  be  not  so,  it  being  admitted  that  the 
plaintiffs'  rights  are  "  'privileging  within  the  meaning  of  the 
article,  the  argument  is  not  answered,  and  the  article  is  in- 
fringed by  the  acts.  Are  then  these  acts  of  the  legislature, 
which  affect  only  particular  persons  and  their  particular  priv- 
ileges, laws  of  the  land  ?  Let  this  question  be  answered  by 
the  text  of  Blackstone.  "  And  first  it  (i.e.  law)  is  a  rule: 
not  a  transient  sudden  order  from  a  superiour  to  or  concern* 
ing  a  particular  person  ;  but  something  permanent,  uniform, 
and  universal.  Therefore  a  particular  act  of  the  legislature 
to  confiscate  the  goods  of  Titius,or  to  attaint  him  of  high  trea- 
son, does  not  enter  into  the  idea  of  a  municipal  law:  for  the 
operation  of  this  act  is  spent  upon  Titius  only,  and  has  no 
relation  to  the  community  in  general  ;  it  is  rather  a  sentence 
than  a  law "(46).  Lord  Coke  is  equally  decisive  and  em- 
phatic. Citing  and  commenting  on  the  celebrated  29th 
chap,  of  Magna  Charta,  he  says,  "  no  man  shall  be  disseiz- 
ed, &c.  unless  it  be  by  the  lawful  judgment,  that  is,  verdict 
of  equals,  or  by  the  law  of  the  land,  that  is,  (to  speak  it  once 
for  all, J  by  the  due  course  and  process  of  law(Al).  Have  the 
plaintiffs  lost  their  franchises  by  "  due  course  anil  process 
of  law  V  On  the  contrary,  are  not  these  acts,  "  particu- 
lar acts  of  the  legislature,  which  have  no  relation  to  the  rom- 
munity  in  general, and  which  arc  rather  sentences  than  laws?'' 
By  the  law  of  the  land,  is  most  clearly  intended,  the  gen- 
eral law  ;  a  law,  wrhich  hears  before  it  condemns;  which 
proceeds  upon  enquiry,  ami  renders  judgment  only  after 
trial.  The  meaning  is,  (hat  every  citizen  shall  hold  his  life, 
liberty,  properly,  and   immunities    under  the  protection    of 

(4f.)  I  Mack.  Com.  44; 
(47)  Coke  2  In    V, 


2(>8  DARTMOUTH  COLLEGE  VS,  WOODWARU. 

the  general  rules  which  govern  society.  Every  thing  which 
may  pass  under  the  form  of  an  enactment,  is  not  therefore  to 
be  considered  the  law  of  the  land.  If  this  were  so,  acts  of  at- 
tainde  ,  bills  of  pains  and  penalties,  acts  of  confiscation,  acts 
reversing  judgments,and  acts  directly  transferring  one  man's 
esfale  to  another,  legislative  judgments,  decrees,  and  forfeit- 
ures in  all  possible  forms,  would  be  the  law  of  the  land. 

Such  a  strange  construction  would  render  constitutional 
provisions  of  the  highest  importance  completely  inoperative 
and  void.  It  would  tend  directly  to  establish  the  union  of 
all  powers  in  the  legislature.  There  would  be  no  general 
permanent  law  for  courts  to  administer,  or  for  men  to  live 
under.  The  administration  of  justice  would  be  an  empty 
form,  an  idle  ceremony.  Judges  would  sit  to  execute  legis- 
lative judgments  and  decrees  ;  not  to  declare  the  law  or  to 
administer  the  justice  of  the  country.  "  Is  that  the  law  of 
the  land,"  said  Mr.  Burke,  "  upon  which,  if  a  man  go  to 
Westminster  Hall,  and  ask  counsel  by  what  title  or  tenure 
he  holds  his  privilege  or  estate  according  to  the  law  of  the 
land,  he  should  be  told,  that  the  law  of  the  land  is  not  yet 
known  ;  that  no  decision  or  decree  has  been  made  in  his 
case  ;  that  when  a  decree  shall  be  passed,  he  will  then 
know  what  the  law  of  the  land  is  ?  Will  this  be  said  to  be 
the  law  of  the  land,  by  any  lawyer  who  has  a  rag  of  a  gown 
left  upon  his  back,  or  a  wig  with  one  tie  upon  his  head  ?" 

That  the  power  of  electing  and  appointing  the  officers  of 
this  college,  is  not  only  a  right  of  the  trustees  as  a  corpora- 
tion, generally,  and  in  the  aggregate,  but  that  each  individu- 
al trustee  has  also  his  own  individual  franchise  in  such 
right  of  election  and  appointment,  is  according  to  the  lan- 
guage of  all  the  authorities.  Lord  Holt  says,  "  it  is  agree- 
able to  reason  and  the  rules  of  law,  that  a  franchise  should 
be  vested  in  the  corporation  aggregate,  and  yet  the  benefit 
of  it  to  redound  to  the  particular  members,  and  to  be  enjoy- 
ed by  them  in  their  private  capacity.     Where  the  privilege 


SUPREME  COURT,  UNITED  STATES.         -69 

of  election  is  used  by  particular  persons,  it  is  a  particular 
right,  vested  in  every  particular  man" (48). 

It  is  also  to  be  considered,  that  the  president  and  profes- 
sors of  this  college  have  rights  to  be  affected  by  these 
acts.  Their  interest  is  similar  to  that  of  fellows  in  the  Eng- 
lish colleges  ;  because  they»derive  their  living,  wholly  f>r  in 
part,  from  the  founder's  bounty.  The  president  is  one  of 
the  trustees,  or  corporators.  The  professors  are  not  neces- 
sarily members  of  the  corporation  ;  but  they  are  appointed 
by  the  trustees,  are  removable  only  by  them,  and  have  fixed 
salaries  payable  out  of  the  general  funds  of  the  college. — 
Both  president  and  professors  hwefreeholds  in  their  offices  ; 
subject  only  to  be  removed,  by  the  trustees,  as  their  legal 
visitors,  for  good  cause.  All  the  authorities  speak  of  fel- 
lowships in  colleges  as  freeholds,  notwithstanding  the  fellows 
may  be  liable  to  be  suspended  or  removed,  for  misbehaviour, 
by  their  constituted  visitors. 

Nothing  could  have  been  less  expected,  in  this  age,  than 
that  there  should  have  been  an  attempt,  by  acts  of  the  legis- 
lature, to  take  away  these  college  livings,  the  inadequate, 
but  the  only  support  of  literary  men,  who  have  devoted 
their  lives  to  the  instruction  of  youth.  The.  president 
and  professors  were  appointed  by  the  twelve  trustees. — 
They  were  accountable  to  nobody  else  and  could  be 
removed  by  nobody  else.  They  accepted  their  offi- 
ces on  this  tenure.  Yet  the  legislature  has  appointed 
other  persons,  with  power  to  remove  these  officers,  and  to 
deprive  them  of  their  livings  ;  and  those  other  persons  have 
exercised  that  power.  No  description  of  private  property 
has  been  regarded  as  more  sacred  than  college  livings.  They 
are  the  estates  and  freeholds  of  a  most  deserving  class  of 
men  ;  of  scholars,  who  have  consented  to  forego  the  advan- 
tages of  professional  and  publick  employments,  audio  de 
vote  themselves  to  science  and  literature,  and  the  instruc- 
tion of  youth,    in    the    quiet    retreats    of    academic   life. — 


2f0  DARTMOUTH  COLLEGE  VS.  WdODWAW). 

Whether  to  dispossess  and  oust  them  ;  to  deprive  them  of 
their  office,  and  to  turn  them  out  of  their  livings  ;  to  do  this 
not  by  the  power  of  their  legal  visitors,  or  governours,  but 
by  acts  of  (he  legislature  ;  and  to  do  it  without  forfeiture,  and 
without  fault ;  whether  all  this  be  not  in  the  highest  degree 
an  indefensible  and  arbitrary  proceeding,  is  a  question,  of 
which  there  would  seem  to  be  but  one  side  fit  for  a  lawyer 
or  a  scholar  to  espouse. 

Of  all  the  attempts  of  James  II.  to  overturn  the  law,  and 
the  rights  of  his  subjects,  none  was  esteemed  more  arbitrary 
or  tyrannical,  than  his  attack  on  Magdalen  College,  Oxford : 
A  i,  yet,  that  attempt  was  nothing  but  to  put  out  one  presi- 
dent and  put  in  another.  The  president  of  that  college  ac- 
cording to  the  charter  and  statutes,  is  to  be  chosen  by  the 
fellows,  who  are  the  corporators.  There  being  a  vacancy, 
the  king  chose  to  take  the  appointment  out  of  the  hands  of 
the  fellows,  the  legal  electors  of  a  president,  into  his  own 
hands.  He  therefore  sent  down  his  mandate  commanding 
the  fellows  to  admit,  for  president,  a  person  of  his  nomina- 
tion ;  and  inasmuch  as  this  was  directly  against  the  charter 
and  constitution  of  the  college,  he  was  pleased  to  add  a  non 
obstante  clause  of  sufficiently  cornprehensive  import.  The 
fellows  were  commanded  to  admit  the  person  mentioned  in 
the  mandate,  "  any  statute,  custom  or  constitution  to  the 
contrary  notwithstanding,  wherewith  we  arc  graciously 
pleased  to  dispense,  in  this  behalf"  The  fellows  refused 
obedience  to  this  mandate,  and  Dr.  Hough,  a  man  of  inde- 
pendence and  character,  was  chosen  president  by  the  fel- 
loes, according  to  the  charter  and  statutes.  The  king  then 
assumed  the  power,  in  virtue  of  his  prerogative,  to  send  down 
certain  commissioners  to  turn  him  out  ;  which  was  done  ac- 
cordingly ;  and  Parker,  a  creature  suited  to  the  times  put 
in  his  place.  And  because  the  president,  who  was  rightful- 
ly and  legally  elected,  mould  not  deliver  the  keys,  the  doors 
were  broken  open.     "  The  nation  as  well  as   the  Universi- 


SUPREME  COURT,  UNITED  STATES.  271 

iy,"  says  Bishop  Burnet,  [Hist,  of  his  own  times,  Vol.  3. 
p.  119.]  looked  on  all  these  proceedings  with  just  indig- 
nation. It  was  thought  an  open  piece  of  robbery  and  bur- 
glary, when  men,  authorised  by  no  legal  commissioji,  camt 
and  forcibly  turned  men  out  of  their  possession  and  free- 
hold."  Mr.  Hume,  although  a  man  of  different  temper,  and 
of  other  sentiments,  in  some  respects,  than  Dr.  Burnet,speaks 
of  this  arbitrary  attempt  of  prerogative,  in  terms  not  less  de- 
cisive. "  The  president,  and  all  the  fellows,"  says  he,  "  ex- 
cept tno,  who  complied,  were  expelled  the  college  ;  and 
Parker  was  put  in  possession  of  the  office.  This  act  of  vio- 
lence of  all  those  which  were  committed  during  the  reign 
of  James,  is  perhaps  the  most  illegal  and  arbitrary.  When 
the  dispensing  power  was  the  most  strenuously  insisted  on 
by  court  lawyers,  it  had  still  been  allowed,  that  the  stat- 
utes which  regard  private  property,  could  not  legally  be 
infringed  by  that  prerogative.  Yet,in  this  instance,it  appear- 
ed that  even  these  were  not  now  secure  from  invasion.  The 
privileges  of  a  college  are  attacked  ;  men  are  illegally  dispos» 
•jessed  of  their  property  for  adhering  to  their  duty,  to  their 
oaths,  and  to  their  religion." 

This  measure  king  James  lived  to  repent,  after  repentance 
was  too  late.  When  the  charter  of  London  was  restored 
and  other  measures  of  violence  retracted,  to  avert  the  im- 
pending revolution,  the  expelled  president  and  fellows  of 
Magdalen  college  were  permitted  to  resume  their  rights. 
It  is  evident  that  this  was  regarded  as  an  arbitrary  inter- 
ference witli  private  property.  Yet  private  property  was  no 
otherwise  attacked,  than  as  a  person  was  appointed  to  ad- 
minister and  enjoy  the  revenues  of  a  college,  in  a  manner 
and  by  persons  not  authorized  by  the  constitution  of  the 
college.  A  majority  of  the  members  of  the  corporation 
would  not  comply  with  the  king's  wishes.  A  minority 
would.  The  object  was,  therefore,  to  make  this  minori 
ty  a  majority.      To  <hi»  end  the   kin^'u  comuiissionni s  wen* 


272      DARTMOUTH  COLLEGE  VS.  WOODWARD. 

directed  to  interfere  in  the  case,  and  they  united  with  the* 
trvo  complying  fellows,  and  expelled  the  rest  ;  and  thus  ef- 
fected a  change  in  the  government  of  the  college.  The  lan- 
guage in  which  Mr.  Hume,  and  all  other  writers,  speak  of 
this  abortive  attempt  of  oppression,  shews  that  colleges 
were  esteemed  to  be,  as  they  truljr  are  private  corporations, 
and  the  property  and  privileges  which  belong  to  them,  pri- 
vate property  and  private  privileges.  Court  lawyers  were 
found  to  justify  the  king  in  dispensing  with  the  laws ;  that  is, 
in  assuming  and  exercising  a  legislative  authority.  Rut  no 
lawyer,  not  even  a  court  lawyer,  in  the  reign  of  king  James 
the  second,  as  far  as  appears,  was  found  to  Say  that  even  by 
this  high  authority,  he  could  infringe  the  franchises  of  the 
fellows  of  a  college  and  take  away  their  livings.  Mr. 
Hume  gives  the  reason  ;  it  is  that  such  franchises  were 
regarded,  in  a  most  emphatic  sense,as private  property  (49). 

If  it  could  be  made  to  appear,  that  the  trustees  and  the 
president  and  professors  held  their  offices  and  franchises 
during  the  pleasure  of  the  legislature,  and  that  the  proper- 
ty holden  belonged  to  the  state,  then  indeed  the  legislature 
have  done  no  more  than  they  had  a  right  to  do.  But  this 
is  not  so.  The  charter  is  a  charter  of  privileges  and  immu- 
nities ;  and  these  are  holden  by  the  trustees  expressly  «> 
gainst   the  state  forever. 

It  is  admitted,  that  the  state,  by  its  courts  of  law  can  en 
force  the  will  of  the  donor,  and  compel  a  faithful  execution 
of  the  trust.  The  plaintiffs  claim  no  exemption  from  legal 
responsibility.  They  hold  themselves  at  all  times  answer- 
able to  the  law  of  the  land,  for  their  conduct  in  the  trust  com- 
mitted to  them.  They  ask  only  to  hold  the  property  of 
which  they  are  owners,  and  the  franchises,  which  belong 
to  them,  until  they  shall  be  found  by  due  course  and  pro 
cess  of  law,  to  have  forfeited  them. 

It  can  make  no  difference,   whether    the  legislature  exer 
cise  the  power  it  has  assumed,  by  removing  the  trustees  and 

'19)  Vide  »  full  account  of  this  case  it)  slate  trials.  4  F.dn.  4  Vol.  pas;e  2fr?. 


SUPREME  COURT,  UNITED  STATES.        273 

the  president  and  professors,  directly,  and  by  name,  or  by 
appointing  others  to  expel  them.  The  principle  is  the  same, 
and  in  point  of  fact,  the  result  has  been  the  same.  If  the 
entire  franchise  cannot  be  taken  away,  neither  can  it  be  es- 
sentially impaired.  If  the  trustees  are  legal  owners  of  the 
property,  they  are  sole  owners.  If  they  are  visitors,  they 
are  sole  visitors.  No  one  will  be  found  to  say,  that  if  the 
legislature  may  do  what  it  has  done,  it  may  not  do  any  thing 
and  every  thing,  which  it  may  choose  to  do,  relative  to  the 
property  of  the  corporation,  and  the  privileges  of  its  mem- 
bers and  officers. 

If  the  view  which  has  been  taken  of  this  question  be  at  all 
correct,  this  was  an  eleemosynary  corporation;  a  private 
charity.  The  property  was  private  property.  The  trustees 
were  visitors,  and  their  rignt  to  hold  the  charter,  administer 
the  funds,  and  visit  and  govern  the  college  was  a  franchise 
and  privilege,  solemnly  granted  to  them.  The  use  being 
publick,  in  no  way  diminishes  their  legal  estate  in  the  prop- 
erty, or  their  title  to  the  franchise.  There  i3  no  principle, 
nor  any  case,  which  declares  that  a  gift  to  such  a  corpora- 
tion, is  a  gift  to  the  publick.  The  acts  in  question  violate 
property.  They  take  away  privileges,  immunities,  and 
franchises.  They  deny  to  the  trustees  the  protection  of 
the  law  ;  and  they  are  retrospective  in  their  operation.  In 
all  which  respects  they  are  against  the  constitution  of  New- 
Hampshire. 

The  plaintiffs  contend,  in  the  second  place,  that  the  acts 
in  question  are  repugnant  to  the  10th  section  of  the  1st  arti- 
cle of  the  constitution  of  the  United  States.  The  material 
words  of  that  section  are  ;  "  no  state  shall  pass  any  bill  of 
attainder,  ex  post  facto  law,  or  law  impairing  the  obligatiou 
of  contracts." 

The  object  of  these  most  important  provisions  in  the  na- 
tional constitution  has  often    been  discussed,  both   here  and 


274  DARTMOUTH  COLLEGE  .VS.  WOODWARD. 

elsewhere.  It  is  exhibited  with  great  clearness  and  force 
by  one  of  the  distinguished  persons  who  framed  that  instru- 
ment. "  Bills  of  attainder,  ex  post  facto  laws,  and  laws  im- 
pairing the  obligation  of  contracts,  are  contrary  to  the  first 
principles  of  the  social  compact,  and  to  every  principle  of 
■ountl  legislation.  The  two  former,  are  expressly  prohibit- 
ed by  the  declarations  prefixed  to  some  of  the  state  consti- 
tutions, and  all  of  them  are  prohibited  by  the  spirit  and 
scope  of  these  fundamental  charters.  Our  own  experience 
has  taught  us,  nevertheless,  that  additional  fences  against 
these  dangers,  ought  not  to  be  omitted.  Very  properly, 
therefore,  have  the  convention  added  this  constitutional  bul- 
wark in  favour  of  personal  security  and  private  rights  ;  and 
I  am  much  deceived,  if  they  have  not,  in  so  doing,  as  faith- 
fully consulted  the  genuine  sentiments,  as  the  undoubted  in- 
terests of  their  constituents.  The  sober  people  of  America, 
are  weary  of  the  fluctuating  policy  which  has  directed  the 
publick  councils.  They  have  seen  with  regret,  and  with 
indignation,  that  sudden  changes,  and  legislative  interferen- 
ces in  cases  affecting  personal  rights,  become  jobs  in  the 
hands  of  enterprising  and  influential  speculators ;  and 
snares  to  the  more  industrious  and  less  informed  part  of  the 
community.  They  have  seen,  too,  that  one  legislative  in- 
terference is  but  the  link  of  a  long  chain  of  repetitions  ;  ev- 
ery subsequent  interference  being  naturally  produced  by  the 
effects  of  the  preceding" (50). 

It  has  already  been  decided  in  this  court,  that  a  grant  it 
a  contract,  within  the  meaning  of  this  provision  ;  and  that  a 
grant  by  a  state,  is  also  a  contract,  as  much  as  the  grant  of 
an  individual.  In  Fletcher  vs.  Peck(51)  this  court  says, 
"  a  contract  is  a  compact  between  two  or  more  parries,  and 
is  either  executory  or  executed.  An  executory  contract  i» 
one  in  which  a  party  binds  himself  to  do,  or  not  to  do,  a  par- 
ticular thing  ;  such  was   the  law  under  which  the  convey- 

(50)  44th  No.  of  the  Fed.  by  Mr.  Madisoa- 

(51)  6Cranch.fr. 


SUPREME  COURT,  UNITED  STATES.  276 

ance  was  mfede  by  the  government.     A  contract  executed  is 
one  in  which  the  object  of  contract  is  performed  ;   and  this, 
says  Blackstone  differs  in  nothing  from  a  grant.     The  con* 
tract  between   Georgia  and  the  purchasers   was  executed 
by  the  grant.     A  contract  executed,  as  well  as  one  which 
is  executory,  contains  obligations  binding  on  the  parties.    A 
grant,  in  its  own  nature,  amounts  to  an  extinguishment  of 
the  right  of  the   grantor,  and  implies   a   contract  not  to 
reassert  that  right.     If  under  a  fan*  construction  of  the  con- 
stitution, grants  are  comprehended  under  the  term  contracts, 
is  a  grant  from  the  state   excluded    from    the    operation    of 
the   provision?  Is  the  clause  to  be  considered  as   inhibiting 
the    state   from    impairing  the  obligation   of   contracts    be- 
tween two  individuals,  but  as  excluding  from  that  inhibition 
contracts  made  with  itself?  The  words  themselves  contain 
no  such  distinction.     They  are  general,  and   are  applicable 
to  contracts  of  every  description.  If  contracts  made  with  the 
state  are  to  be  exempted  from  their  operation,  the  exception 
must  arise  from  the  character  of  the  contracting  party,  notfrom 
the  words  which  are  employed.  Whatever  respect  might  have 
been  felt  for  the  state  sovereignties,  it  is  not  to  be  disguised, 
That  the  framers  of  the  constitution  viewed,   with  some  ap- 
prehension, the    violent  acts  which  might  grow  out    of  the 
feelings  of  the  moment ,  and  that  the  people  of  the  United 
States  in  adopting  that  instrument,  have  manifested  a  deter- 
mination to  shield  themselves,  and  I  heir  property,  from  the 
effects  of  those  sudden  and    strong    passions  to  which    men 
are  exposed.     The  restrictions  on  the  legislative    power  of 
the  states,  are    obviously    founded  in    this    sentiment ;  and 
the  constitution  of  the  United  Slates  contains  what  may   be' 
deemed  a  bill  of  rights,  for  the  people  of  each  slate." 

It  has  also  been  decided,  that  a  grant  by  a  state  before  the 
revolution,  is  as  much  to  be  protected  as  a  grant  since(jl) 
I* ut  the  case  of  Terrett    v<.   Taylor,  before  <  ited,   is  of  all 

M  >.:     New  Jfrvy  vs.   'W  ■'■  ••  (   ,«r:   u  !•'* 


•276  DARTMOUTH  COLLEGE  VS.  WOODWARD. 

others  most  pertinent  to  the  present  argument.  Indeed  the 
judgment  of  the  court  in  that  case  seems  to  leave  little  to  be  ar- 
gued or  decided  in  this.  "A  private  corporation,"  say  the 
"  court,  created  by  the  legislature  may  lose  its  franchises  by  a 
misuser  or  a  nonuser  of  them ;  and  they  may  be  resumed 
by  the  government  under  a  judicial  judgment  upon  a  quo 
warranto  to  ascertain  and  enforce  the  forfeiture.  This  is 
the  common  law  of  the  land,  and  is  a  tacit  condition  annex- 
ed to  the  creation  of  every  such  corporation.  Upon  a 
change  of  government,  too,  it  may  be  admitted  that  such  ex- 
clusive privileges  attached  to  a  private  coporation  as  are 
inconsistent  with  the  new  government,  may  be  abolished. 
In  respect,  also,  to  publick  corporations  which  exist  only 
for  publick  purposes,  such  as  counties,  towns,  cities,  &c.  the 
legislature  may,  ur.der  proper  limitations,  have  a  right  to 
change,  modify,  enlarge  or  restrain  them,  securing  however, 
the  property  for  the  uses  of  those  for  whom  and  at  whose 
expense  it  was  originally  purchased.  But  that  the  legisla- 
ture can  repeal  statutes  creating  private  corporations, 
or  confirming  to  them  property  already  acquired  under  the 
faith  of  previous  laws,  and  by  such  repeal  can  vest  the  prop- 
erty of  such  corporations  exclusively  in  the  state,  or  dispose 
of  the  same  to  such  purposes  as  they  please,  without  the 
consent  or  default  of  the  corporators,  we  are  not  prepared 
to  admit ;  and  we  think  ourselves  standing  upon  the  princi- 
ples of  natural  justice,  upon  the  fundamental  laws  of  every 
tree  government,  upon  the  spirit  and  letter  of  the  constitu- 
tion of  the  United  States,  and  upon  the  decisions  of  most 
respectable  judicial  tribunals,  in  resisting  such  a  doctrine." 
This  court,  then,  does  not  admit  the  doctrine, that  a  legisla- 
ture can  repeal  statutes  creating  private  corporations.  If  it 
cannot  repeal  them  altogether,  of  course  it  cannot  repeal  any 
part  of  them,  or  impair  them,  or  essentially  alter  them  with- 
out the  consent  of  the  corporators.  If,  therefore  it  has  been 
shewn  that  this  college  is  to  be  regarded  as  a  private  charity. 


SUPREME  COURT,  UNITED  STATES.  277 

this  case  is  embraced  within  (he  very  terms  of  that  decision. 
A  grant  of  corporate  powers  and  privileges  is  as  much  a  con- 
tract  as  a  grant  of  land.  What  proves  all  charters  of  this 
sort  to  be  contracts,  is,  that  they  must  be  accepted  to  give 
them  force  and  effect.  If  they  are  not  accepted  they 
are  void.  And  in  the  case  of  an  existing  corporation,  if 
a  new  charter  is  given  it,  it  may  even  accept  part  and  reject 
the  rest.  In  Rex  vs.  vice  chancellor  of  Cambridge,  (52) 
lord  Mansfield  says,  "  there  is  a  vast  deal  of  difference  be- 
tween a  new  charter  granted  to  a  new  corporation  (who  must 
take  it  as  it  is  given  ;)  and  a  new  charter  given  to  a  corpo- 
ration already  in  being,  and  acting  either  under  a  former 
charter,  or  under  prescriptive  usage.  The  latter,  a  corpo- 
ration already  existing,  are  not  obliged  to  accept  the  new 
charter  in  toto,  and  to  receive  either  all  or  none  of  it  :  they 
may  act  partly  under  if,  and  partly  under  their  old  charter 
or  prescription.  The  validity  of  these  new  charters  must 
turn  upon  the  acceptance  of  them."  In  the  same  case  Mr. 
Justice  Wiluiot  says,  "It  is  the  concurrence  and  accept- 
ance of  the  university  that  gives  the  force  to  the  charter  of 
the  crown."  In  the  King  vs.  Passmore,(53)  lord  Kenyon 
observes  :  "  some  things  are  clear  ;  when  a  corporation  ex- 
ists capable  of  discharging  its  functions,  the  crown  cannot 
obtrude  another  charter  upon  them  ;  they  may  either  ac- 
cept or  reject  it"  (54). 

In  all  cases  relative  to  charters,  the  acceptance  of  them  is 
uniformly  alleged  in  the  pleadings.  This  shews  the  general 
understanding  of  the  law,  that  they  are  grants,  or  contracts  ; 
and  that  parties  are  necessary  to  give  them  force  and  valid- 
ity. In  King  vs.  Dr.  Askew,(55)  it  is  said  ;  "  The  crown 
cannot  oblige  a  man  to  be  a  corporator,  without  his  consent  : 
he  shall  not  be  subject  to  the  inconveniences  of  it,  without 
accepting  it  and  assenting  to  it."     These  terms,  "  accepl- 


(52)  3  Burr.  1C5G. 

(53)  3  Term.  Rep.  240. 

(54)  Vide  also  I  KydonfJor.    05. 
'>">)   \  Buit   2'20M. 


378  DARTMOUTH  COLLfiGE  VS.  \V0ODWA1lD. 

ance"  and  "  assent,"  are  the  very  language  of  contract.  lit 
Ellis  vs.  Marshall (56)  it  was  expressly  adjudged  that  the 
naming  of  the  defendant  among  others,  in  an  act  of  incorpor- 
ation did  not  of  itself  make  him  a  corporator  ;  and  that  his 
assent  was  necessary  to  that  end.  The  court  speak  of  the 
act  of  incorporation  as  a  grant,  and  observe  ;  "  that  a  man 
may  refuse  a  grant,  whether  from  the  government  or  an  in- 
dividual, seems  to  be  a  principle  too  clear,  to  require  the 
support  of  authorities."  But  Justice  Buller,  in  King  vs. 
Passmore,  furnishes  if  possible  a  still  more  direct  and  explic- 
it authority.  Speaking  of  a  corporation  for  government,  he 
says  :  "I  do  not  know  how  to  reason  on  this  point  better 
than  in  the  manner  urged  by  one  of  the  relator's  counsel ; 
who  considered  the  grant  of  incorporation  to  be  a  compact 
between  the  crown  and  a  certain  number  of  the  subjects, 
the  latter  of  whom  undertake,  in  consideration  of  the  privi- 
leges which  are  bestowed,  to  exert  themselves  for  the  good 
government  of  the  place."  This  language  applies,  with  pe- 
culiar propriety  and  force  to  the  case  before  the  court.  It 
was  in  consequence  of  the  "  privileges  bestowed,"  that  Dr. 
Wheelock  and  his  associates  undertook  to  exert  themselves 
for  the  instruction  and  education  of  youth  in  this  college  ; 
and  it  was  on  the  same  consideration  that  the  fouader  en- 
dowed it  with  his  property. 

And  because  charters  of  incorporation  are  of  the  nature 
of  contracts,  they  cannot  be  altered  or  varied  but  by  con- 
sent of  the  original  parties.  If  a  charter  be  granted  by  the 
king,  it  may  be  altered  by  a  new  charter  granted  by  the 
king,  and  accepted  by  the  corporators.  But  if  the  first 
charter  be  granted  by  parliament,  the  consent  of  parliament* 
must  be  obtained  to  any  alteration.  In  King  vs.  Miller,(57) 
lord  Kenyon  says  ;  "  Where  a  corporation  takes  its  rise 
from  the  king's  charter,  the  king  by  granting,  and  the  cor- 
poration by  accepting  another  charter,  may  alter  it,  because 

(5f>)  2  Mass.  Rep.  2fi9. 
(i. )  6  Term.  Hep.  277, 


SUPREME  COURT,  UNITED  STATES.  "279 

U  is  done  with  the  consent  of  all  the  parties  who  are  compe- 
tent to  consent  to  the  alteration" (58). 

There  are,  in  this  case,  all  the  essential  constituent 
parts  of  a  contract.  There  is  something  to  be  contract- 
ed about,  there  are  parties,  and  there  are  plain  terms  in 
which  the  agreement  of  the  parties,  on  the  subject  of 
the  contract,  is  expressed.  There  are  mutual  considera- 
tions and  inducements.  The  charter  recites,  that  the  founder 
on  his  part,  has  agreed  to  establish  his  seminary,  in  New- 
Hampshire,  and  to  enlarge  it,  beyond  its  original  design, 
among  other  things,  for  the  benefit  of  that  province:  and 
thereupon  a  charter  is  given  to  him,  and  his  associates  desig- 
nated by  himself,  promising  and  assuring  to  them  under  the 
plighted  faith  of  the  state,  the  right  of  governing  the  college, 
and  administering  its  concerns  in  the  maimer  provided  in  the 
charter.  There  is  a  complete  and  perfect  grant  to  them  of 
all  the  power  of  superintendence,  visitation,  and  government. 
Is  not  this  a  contract?  If  lands  or  money  had  been  granted 
to  him,  and  bis  associates  for  the  same  purposes,  such  grant 
could  not  be  rescinded.  And  is  there  any  difference  in  le- 
gal contemplation,  between  a  grant  of  corporate  franchises, 
and  a  grant  of  tangible  property?  No  such  difference  is  re- 
cognized in  any  decided  case,  nor  does  it  exist  in  the  com- 
mon apprehension  of  mankind. 

It  is  therefore  contended,  that  this  case  falls  within  the 
true  meaning  of  this  provision  of  the  constitution,  as  ex- 
pounded in  the  decisions  of  this  court;  that  the  charter  of 
1769,  is  a  contract,  a  stipulation  or  agreement ;  mutual  in  its 
considerations,  express  and  formal  in  its  terms,  and  of  a 
most  binding  and  solemn  nature.  That  (he  acts  in  question 
impair  this  contract,  has  already  been  sufticiently  shewn 
They  repeal  and    abrogate  its  most  essential  parts. 

A  single  observation  may  not  be  improper  on  the  opinion  of 
the  court  of  New-Hampshire;  which  has  been  published.   The 

"II"!  Y;d*u'*.  *  Hro«  ti.  «.)t   hVr,   Go.'   li\  >>i.'i\  litJ^i*  ^hmtl. 


4280  DARTMOUTH  COLLEGE  VS.  WOODWARD. 

learned  judges,  who  delivered  that  opinion,  have  viewed  this 
question  in  a  very  different  light,  from  that  in  which  the 
plaintiffs  have  endeavoured  to  exhibit  it.  After  some  gen- 
eral remarks,  they  assume  that  this  college  is  a  publick  cor- 
poration; and  on  this  basis  their  judgment  rests.  Wheth- 
er all  colleges  are  not  regarded  as  private,  and  eleemosynary 
corporations,  by  all  law  writers,  and  all  judicial  decisions; 
whether  this  college  was  not  founded  by  Dr.  Wheelock; 
whether  the  charter  was  not  granted  at  his  request,  the  bet- 
ter to  execute  a  trust,  which  he  had  already  created ;  wheth- 
er he  and  his  associates  did  not  become  visitors,by  the  char- 
ter ;  and  whether  Dartmouth  College  be  not,  therefore,  in 
the  strictest  sense,  a  private  charity,  are  questions  which 
the  learned  judges  do  not  appear  to  have  discussed.  v 

It  is  admitted  in  that  opinion,  that  if  it  be  a  private  cor- 
poration, its  rights  stand  on  the  same  ground  as  those  of  an 
individual.  The  great  question,  therefore,  to  be  decided, 
is  to  which  class  of  corporations  do  colleges  thus  founded  be- 
long? And  the  plaintiffs  have  endeavoured  to  satisfy  the  court, 
that  according  to  the  well  settled  principles,  and  uniform  de- 
cisions of  law,  they  are  private  eleemosynary  corporations. 

Much  has  heretofore  been  said  on  the  necessity  of  ad- 
mitting such  a  power  in  the  legislature  as  has  been  assumed 
in  this  case.  Many  cases  of  possible  evil  have  been  imagin- 
ed, which  might  otherwise  be  without  remedy.  Abuses,  it 
is  contended,  might  arise  in  the  management  of  such  institu- 
tions, which  the  ordinary  courts  of  law  would  be  unable  to 
correct.  But  this  is  only  another  instance  of  that  habit  of 
supposing  extreme  cases,  and  then  of  reasoning  from  them, 
which  is  the  constant  refuge  of  those  who  are  obliged  to  de- 
fend a  cause,  which,  upon  its  merits,  is  indefensible.  It  would 
be  sufficient  to  say,  in  answer,  that  it  is  not  pretended,  that 
there  was  here  any  such  case  of  necessity.  But  a  still  more 
satisfactory  answer  is  that  the  apprehension  of  danger  is 
•iroundless,  and    therefore  the    whole  argument  fails.     Ex- 


SUPREME  COURT,  UNITED  STATES.  281 

perience  has  not  taught  us  that  there  is  danger  of  great  evils 
or  of  great  inconvenience  from  this  source.  Hitherto,  nei- 
ther in  our  own  country  nor  elsewhere,  have  such  cases  of 
necessity  occurred.  The  judicial  establishments  of  the  state 
are  presumed  to  be  competent  to  prevent  abuses  and  viola- 
tions of  trust,  jn  cases  of  this  kind,  as  well  as  in  all  others.  If 
they  be  not,  they  are  imperfect,  and  their  amendment  would 
be  a  most  proper  subject  for  legislative  wisdom.  Under  the 
government  and  protection  of  the  general  laws  of  the  land, 
these  institutions  have  always  been  found  safe, as  well  as  useful. 
TPhey  go  on,  with  the  progress  of  society,  accommodating 
themselves  easily,  without  sudden  change  or  violence,  to  the 
alterations  which  take  place  in  its  condition  ;  and  in  the 
knowledge,  the  habits,  and  pursuits  of  men.  The  English 
colleges  were  founded  in  Catholic  ages.  Their  religion  was 
reformed  with  the  general  reformation  of  the  nation  ;  and 
they  are  suited  perfectly  well  to  the  purpose  of  educating  the 
protestant  youth  of  modern  limes.  Dartmouth  college  was 
established  under  a  charter  granted  by  the  provincial  gov- 
ernment ;  but  a  better  constitution  for  a  college,  or  one 
more  adapted  to  the  condition  of  things  under  the  present 
iiovernment,  in  all  material  respects,  could  not  now  be  framed. 
Nothing  in  it  was  found  to  need  alteration  at  the  revolution. 
The  wise  men  of  that  day  saw  in  it  one  of  the  best  hopes  of 
future  times,  and  commended  it,  as  it  was,  with  parental  care, 
to  the  protection  and  guardianship  of  the  government  of  the 
state.  A  charter  of  more  liberal  senlimen's,  of  wiser  pro- 
visions, drawn  with  more  care,  or  in  abetter  spirit,  could  not 
be  expected  at  any  time  or  from  any  source.  The  college 
needed  no  change  in  its  organization  or  government.  That 
which  it  did  need  was  the  kindness,  the  patronage,  the  boun- 
ty of  the  legislature  ;  not  a  mock  elevation  to  the  character 
of  a  university,  without  the  solid  benefit  of  a  shilling's  dona- 
tion to  sustain  the  character  ;  not  the  swelling  and  empty 
authority  of  establishing  institutes  and  other  colleges.  This 
.'37 


282      DARTMOUTH  COLLEGE  VS.  WOODWARD; 

unsubstantial  pageantry  would  seem  to  have  been  in  derision 
of  the  scanty  endowment  and  limited  means  of  an  unobtrusive 
but  useful  and  growing  seminary.  Least  of  all  was  there  a 
necessity,  or  pretence  of  necessity,  to  infringe  its  legal 
rights,  violate  its  franchises  and  privileges,  and  pour  upon  it 
these  overwhelming  streams  of  litigation. 

But  this  argument  from  necessity,  would  equally  apply  in 
all  other  cases. — If  it  be  well  founded,  it  would  prove,  that 
whenever  any  inconvenience  or  evil  should  be  experienced 
from  the  restrictions  imposed  on  the  legislature  by  the  con- 
stitution, these  restrictions  ought    to  be  disregarded.     It  is 

enough  to  say,  that  the  people  have    thought  otherwise 

They  have,  most  wisely,  chosen  to  take  the  risk,  of  occa- 
sional inconvenience  from  the  want  of  power,  in  order  that 
there  might  be  a  settled  limit  to  its  exercise,  and  a  perma- 
nent security  against  its  abuse.  They  have  imposed  prohi- 
bitions and  restraints  ;  and  they  have  not  rendered  these  alto- 
gether vain  and  nugatory  by  conferring  the  power  of  dispen- 
sation. If  inconvenience  should  arise,  which  the  legislature 
cannot  remedy  under  the  power  conferred  upon  it,  it  is  not 
answerable  for  such  inconvenience.  That  which  it  cannot 
do,  within  the  limits  prescribed  to  it,  it  cannot  do  at  all.  No 
legislature  in  this  country  is  able,  and  may  the  time  never 
come  when  it  shall  be  able,  to  apply  to  itself  the  memorable 
expression  of  a  Roman  pontiff;  "  Licet  hoc  de  jure  non 
jjossamus,  volumus  tamcn  de  p6Enitudine  potestatis." 

The  case  before  the  court  is  not  of  ordinary  importance, 
nor  of  every  day  occurrence.  It  affects  not  this  college  on- 
ly, but  every  college,  and  all  the  literary  institutions  of  the 
country.  They  have  flourished,  hitherto,  and  have  become 
in  a  high  degree  respectable  and  useful  to  the  community. 
They  have  all  a  common  principle  of  existence,  the  inviola- 
bility of  their  charters.  It  will  be  a  dangerous,  a  most 
dangerous  experiment,  to  hold  these  institutions  subject  to 
the  rise  and  fall  of  popular  parties,   and    the  fluctuations  of 


SUPREME  COURT,  UNITED  STATES.  28ii 

political  opinions.  If  the  franchise  may  be  at  any  time 
taken  away,  or  impaired,  the  property  also  may  be  taken 
away,  or  its  use  perverted.  Benefactors  will  have  no  cer- 
tainty of  effecting  the  object  of  their  bounty  ;  and  learned 
men  will  be  deterred  from  devoting  themselves  to  the  ser- 
vice of  such  institutions,  from  the  precarious  title  of  their 
offices.  Colleges  and  halls  will  be  deserted  by  all  better 
spirits,  and  become  a  theatre  for  the  contention  of  politicks. 
Party  and  faction  will  be  cherished  in  the  places  consecrat- 
ed to  piety  and  learning.  These  consequences  are  neither 
remote  nor  possible  only.  They  are  certain  and  immediate. 

When  the  court  in  North  Carolina  declared  the  law  of 
the  state,  which  repealed  a  grant  to  its  university,  unconsti- 
tutional and  void,  the  legislature  had  the  candour  and  the 
wisdom  to  repeal  the  law.  This  example,  so  honourable 
to  the  state  which  exhibited  it,  is  most  fit  to  be  followed 
on  this  occasion.  And  there  is  good  reason  to  hope, 
that  a  state,  which  has  hitherto  been  so  much  distinguished 
for  temperate  councils,  cauiicus  legislation,  and  regard  to 
law,  will  not  fail  to  adept  a  course,  which  will  accord  with 
her  highest  and  best  interest,  and  in  no  small  degree  ele- 
vate her  reputation. 

It  was  for  many  and  obvious  reasons  most  anxiously 
desired,  that  the  question  of  the  power  of  the  legislature 
over  this  charter  should  have  been  finally  decided  in  the 
s!ate  court.  An  earnest  hope  was  entertained  that  the  judg- 
es of  that  court  might  have  viewed  the  case  in  the  light  fa- 
vourable to  the  rights  of  the  trustees.  Thai  hope  has  failed. 
St  is  here,  that  those  rights  are  now  to  be  maintained,  or 
they  are  prostrated  forever.  Omnia  alia  perfuiria  bono 
rum,  subsidia,  consilia,  auxilia,  jura  rectderunt.  Quern 
cnim  (ilium  appellem  ?  quern  oblesler  ?  quern  implorem  ? 
Nisi  hoc  loco,  nisi  a  pud  vos,  nisi  per  vos,  judices,  sulutem 
nostrum,  quae  spe  exicrua  extremaquc  paid  el,  tenuerimus  : 
nihil  est  pro  terra  quo  confute ie  possimus. 


184  DAIITMOUTH  COLLEGE  VS.  WOODWARJ). 

Mr.  Holmes,  for  the  defendant  in   error,  argued    that 
the  prohibition  in  the   constitution   of  the  United    States, 
which  could  alone  give  the  court  jurisdiction  in  this  case, 
did  not  extend  to  grants  of  political   power, — to    contracts 
concerning  the  internal  government  and  police  of  a  sovereign 
state.     Nor  does  it  extend  to  contracts  which  relate  merely 
to  matters  of  civil  institution,   even    of  a  private  nature.— 
Thus  marriage  is  a  contract,  and  a  private  contract  ;  but  re- 
lating merely  to  a  matter  of  civil  institution,  which  every  so- 
ciety has  an  inherent  right  to  regulate  as  its  own    wisdom 
may  dictate,  it  cannot  be  considered  as  within  the  spirit  of 
this  prohibitory  clause.     Divorces  unquestionably   impair 
the  obligation  of  the  nuptial  contract;  they  change  the  re- 
lations of  the  marriage  state  without  the  consent  of  both  the 
parties,  and  this  comes  clearly  within  the  letter  of  the  pro- 
hibition.    But  surely  no  one  will  contend  that  there  is  lock- 
ed up  in  this  mystical  clause  of  the  constitution,  a  prohibi- 
tion to  the  states  to  grant  divorces, — a  power  peculiarly  ap- 
propriate to  domestick  legislation,  and  which  has  been  exer- 
cised in  every  age  and  nation  where  civilization  has  produc- 
ed that  corruption  of  manners,  which  unfortunately  requires 
this  remedy.     Still  less  can  a  contract  concerning  a  publick 
office  to  be  exercised,  or  duty  to  be  performed,  be  included 
within  this  prohibition.     The  convention  who   framed   the 
constitution,  did  not  intend  to  interfere  in  the  exercise  of  the 
political  powers  reserved  to  the   state  governments.     That 
was  left  to  be  regulated  by  their  own  local  laws  and  consti- 
tutions ;  with  this    exception   only,   that  the  union  should 
guarantee  to  each  state  a  republican  form  of  government,  and 
defend  it  against  domestick  insurrection  and  rebellion.     Be- 
yond this,  the  authorities  of  the  union   have  no  right  to  in- 
terfere in  the  exercise  of  the  powers  reserved  to  the  states. 
They  are  sovereign  and  independent  in  their  sphere.     If,  for 
example,  the  legislature  of  a  particular  state  should  attempt 
to  deprive  the  judges  of  its  courts  (who,  by  the  state  consti- 


SUPREME  COURT,  UNITED  STATES.  285 

iution  hold  their  places  during  good  behaviour)  of  (heir  offi- 
ces without  a  trial  by  impeachment  ;  or  should  arbitrarily* 
and  capriciously  increase  the  number  of  the  judges  so  as  to 
give  the  preponderancy  in  judicature  to  the  prevailing  polit- 
ical faction,  would  it  be  pretended  that  the  minority  could 
resist  such  a  law  on  the  ground  of  its  impairing  the  obliga- 
tion of  a  contract  ?  Must  not  the  remedy  if  any  where  exist- 
ing, be  found  in  the  interposition  of  some  state  authority  to 
enforce  the  provisions  of  the  state  constitution  ?  The  edu- 
cation of  youth,  and  the  encouragement  of  the  arts  and  sci- 
ences, is  one  of  the  most  important  objects  of  civil  govern- 
ment^). By  our  constitution,  it  is  left  exclusively  to  the 
states,  with  the  exception  of  copy  rights  and  patents.  It 
was  in  the  exercise  of  this  duly  of  government  that  this 
charter  was  originally  granted  to  Dartmouth  college.  Even 
when  first  granted  under  the  colonial  government  it  was  sub- 
ject to  the  notorious  authority  of  the  British  parliament  over 
all  charters  containing  grants  of  political  power.  It  might 
have  been  revoked  or  modified  by  act  of  parliamcnt(2). 
The  revolution  which  separated  the  colony  from  the  parent 
country,  dissolved  all  connection  between  this  corporation 
and  the  crown  of  Great  Britain.  Bat  it  did  not  destroy  that 
supreme  authority  which  every  political  society  has  over  its 
publick  institutions.  That  still  remained,  and  was  transfer- 
red to  the  people  of  New-Hampshire.  They  have  not  re- 
linquished it  to  the  government  of  the  United  States,  or  to 
any  department  of  that  government.  Neither  does  the  con- 
stitution of  New-Hampshire  confirm  the  charter  of  Dart 
mouth  college,  so  as  to  give  it  the  immutability  of  the  fundu 
mental  law.  On  the  contrary  the  constitution  of  the  statr 
admonishes  the  legislature  of  the  duty  of  encouraging  sci- 
ence and  literature,  and  thus  seems  to  suppose  its  power  ol 
conlroul  over  the  scientifick  and  literary  institutions  of  Ihr. 
•tate.     The  legislature  therefore  has  a  ricjlit   to  modify  this 

(I)  Vattcl  L.  I.  c.  11.  s.  112.  I!- 
(-)  1  L51ac.  Com.  48  i. 


286  DARTMOUTH  COLLEGE  VS.  WOODWARD. 

trust,  (he  original  object  of  which  was  the  education  of  the 
Indian  and  English  youth  of  the  province.  It  is  not  neces- 
sary to  contend  that  it  had  the  right  of  wholly  diverting  the 
fund  from  the  original  object  of  its  pious  and  benevolent 
founders.  Still  it  must  be  insisted  that  a  regal  grant,  with  ft 
regal  and  colonial  policy,  necessarily  became  subject  to  the 
modification  of  a  republican  legislature,  whose  right  and 
whose  duty  it  was  to  adapt  the  education  of  the  youth  of  the 
country  to  the  change  in  its  political  institutions.  It  is  a 
corollary  from  the  right  of  self  government.  The  ordinary 
remedies  which  are  furnished  in  the  court  for  a  misuser  of 
the  corporate  franchises,  are  not  adapted  to  the  great  exi- 
gencies of  a  revolution  in  government.  They  presuppose  a 
permanently  established  order  of  things,  and  are  intended 
only  to  correct  occasional  deviations  and  minor  mischiefs. — 
But  neither  a  reformation  in  religion,  nor  a  revolution  in  gov- 
ernment can  be  accomplished  or  confirmed  by  a  writ  of  quo 
warranto  or  mandamus.  We  do  not  say  that  the  corpora- 
tion has  forfeited  its  charter  for  misuser  ;  but  that  it  has  be- 
come unfit  for  use  by  change  of  circumstances.  Nor  does 
the  lapse  of  time  from  1776  (o  1816  infer  an  acquiescence  on 
the  part  of  the  legislature,  or  a  renunciation  of  its  right  to 
abolish  or  reform  an  institution,  which  being  of  a  publick 
nature,  cannot  hold  its  privileges  by  prescription.  Our  ar- 
gument is,  that  it  is,  at  all  times,  liable  to  be  new  modelled 
by  the  legislative  wisdom  instructed  by  the  lights  of  the 
age. 

The  conclusion  then  is,  that  this  charter  is  not  such  a 
CGniract  as  is  contemplated  by  the  constitution  of  the  Unit- 
ed Statec  ;  that  it  is  not  a  contract  of  a  private  nature  con- 
c  vnins;  property  or  other  private  interests  :  but  that  it,  is  a 
giant  of  a  publick  nature,  for  publick  purposes  relative  to 
the  interna!  government  and  police  of  the  state,  and  there- 
fore liabie  1o  be  revoked  or  modified  by  the  supreme  power 
of  the  stale. 


SUPREME  COURT,  UNITED  STATES.  237 

Supposing  however,  Ibis  to  be  a  contract  such  as  was 
meant  to  be  included  in  the  constitutional  prohibition,  is  its 
obligation  impaired  by  these  acts  of  the  legislature  of  New- 
Hampshire  ? 

The  title  of  the  acts  of  the  27th  June,  and  the  18th  De- 
cember 1816,  shews  the  legislative  will  and  intention  was  to 
amend  the  charter,  and  enlarge  and  improve  the  corpora- 
tion. If  by  a  technical  fiction  the  grant  of  the  charier  can 
be  considered  as  a  contract  between  the  king  (or  the  state) 
and  the  corporators,  the  obligation  of  that  contract  is  not  im- 
paired ;  but  is  rather  enforced,  by  these  acts,  which  con- 
tinue the  same  corporation,  for  the  same  objects,  under  a 
new  name.  It  is  well  settled  that  a  mere  change  of  the 
name  of  a  corporation  will  not  affect  its  identity.  An  ad- 
dition to  the  number  of  colleges,  the  creation  of  new  fellow- 
fchips,  or  an  increase  to  the  number  of  the  trustees,  do  not 
impair  the  franchises  of  the  corporate  body.  Nor  is  the 
franchise  of  any  individual  corporator  impaired.  In  the 
words  of  Mr.  Justice  Ashurst,  in  the  case  of  the  King  vs. 
Passmore,(3)  "  the  members  of  the  old  body  have  no  injury 
or  injustice  to  complain  of,  for  they  are  all  included  in  the 
new  charter  of  incorporation,  and  if  any  of  them  do  not  he- 
come  members  of  the  new  incorporation,  but  refuse  to  ac- 
cept, it  is  their  own  fault."  What  rights  which  are  secur- 
ed by  this  alleged  contract  are  invaded  by  the  acts  of  the 
legislature  ? — Is  it  the  right  of  properly,  or  of  privileges  ? 
It  is  not  the  former,  because  the  corporate  body  is  not  de- 
prived of  the  least  portion  of  its  property.  If  it  be  the  per- 
sonal privileges  of  the  corporators  that  are  attacked,  these 
must  be  either  a  common  and  universal  privilege,  such  as  the 
right  of  suffrage,  for  the  interrupting  the  exercise  of  which  ait 
action  would  lie  ;  or  they  must  be  monopolies  and  exclusive 
privileges,  which  are  always  subject  to  be  regulated  or  mod- 
ified by  the  supreme  power  of  (lie  state.       Where  a  private 

1    )  :,  Term  Ke|i.  ->M 


288  DARTMOUTH  COLLEGE  VS.  WOODWARD 

proprietary  interest  is  coupled  with  the  exercise  of  political 
power  or  a  publick  trust,  the  charters  of  corporations  have 
frequently  been  amended  by  legislative  authority(4).  In 
charters  creating  artificial  persons  for  purposes  exclusively 
private,  and  not  interfering  with  the  common  rights  of  the 
citizens,  it  may  be  admitted  that  the  legislature  cannot  inter- 
fere to  amend  without  the  consent  of  thegrantees.  The  grant 
of  such  a  charter  might  perhaps  be  considered  as  analogous 
to  a  contract  between  the  state  and  private  individuals  affect- 
ing their  private  rights,  and  might  thus  be  regarded  as  within 
the  spirit  of  the  constitutional  prohibition.  But  this  charter  is 
merely  a  mode  of  exercising  one  of  the  great  powers  of  civ- 
il government.  Its  amendment  or  even  repeal  can  no  more 
be  considered  as  the  breach  of  a  contract  than  the  amend- 
ment or  repeal  of  any  other  law.  Such  repeal  or  amend- 
ment is  an  ordinary  act  of  publick  legislation,  and  not  an  act 
impairing  the  obligation  of  a  contract  between  the  govern- 
ment and  private  citizens,  under  which  personal  immunities 
or  proprietary  interests  are  vested  in  them. 

(4)  Gray  vs.  Portland  Bank,  3  Mass.  Rep.   364. — The  Commonwealth  vs> 
Bird,  12  Mass.  Rep.  443. 


Mr.  Wirt,  the  Attorney  General,  on  the  same  side,  stat- 
ed that  the  only  question  before  the  court  was,  whether  the 
several  acts  of  the  legislature  of  New-Hampshire  mentioned 
in  the  special  verdict,  are  repugnant  to  that  clause  in  the 
constitution  of  the  United  States,  which  provides  that  "  no 
state  shall  pass  any  bill  of  attainder,  ex  post  facto  law,  or 
law  impairing  the  obligation  of  contracts." 

Besides  its  intrinsic  difficulty,  the  extreme  delicacy  of 
this  question  is  evinced  by  the  sentiment  expressed  by  the 
court  whenever  it  has  been  called  to  act  on  such  a  ques- 
tion(l).     In  the  case  of  Calder  et  ux.  vs.   Bull    et  ux(2). 

(1)  Calder  et  ux.  vs.  Bull  et  ux.  3  Ball  392. 394.  395-— Fletcher  vs.  Peck,  6 
Oaneh  8". — New-Jersey  vs.  Wilson,  7  Crunch  104 — Terret  vs.  Taylorn 
9  Cranch  43. 

(2)  Dall.  395. 


SUPREME  COURT,  UNITED  STATES.  231> 

Mr.  Justice  Chase  expressed  himself  with  his  usual  emphaf 
ick  energy,  and  said  "I  will  not  decide  any  law  to  be  void, 
but  in  a  very  clear  case."  Is  it,  a  very  clear  case  that 
these  acts  of  New-Hampshire  are  repugnant  to  the  constitu- 
tion of  the  United  States  ?  1.  Are  they  bills  of  attainder  ? 
The  elementary  writers  inform  us  that  an  attainder  is  "  the 
stain  or  corruption(3)  of  the  blood  of  a  criminal  capitally 
condemned."  True  it  is  that  the  Chief  Justice  says,  in 
Fletcher  vs.  Peck(4)  that  a  bill  of  attainder  may  afl'ect  the 
life  of  an  individual,  or  may  confiscate  his  estate,  or  both. 
But  the  cause  did  not  turn  upon  this  point,  and  the  chief 
justice  waa  not  called  upon  to  weigh  with  critical  accuracy 
his  expressions  in  this  part  of  the  case.  In  England,  most 
certainly,  the  first  idea  presented  is  that  of  corruption  of 
blood,  and  consequent  forfeiture  of  the  entire  property  of 
(he  criminal  as  the  regular  and  inevitable  consequences  of  a 
capital  conviction  at  common  law.  Statutes  sometimes  par- 
don the  attainder  and  merely  forfeit  the  estate.  But  the 
forfeiture  is  always  complete  and  entire.  In  1he  present 
case,  however,  it  cannot  be  pretended  that  any  part  of  the 
estate  of  the  trustees  is  forfeited,  and  if  a  pari,  certainly  not 
the  whole. 

2.  Are  these  acts,  laws  impairing  the  obligation  of  con 
tracts  ? 

The  mischiefs  actually  existing  at  the  time  the  constitu- 
tion was  eslablished,  and  which  were  intended  to  be  rem- 
edied by  this  prohibitory  clause,  will  shew  the  nature  of 
contracts  contemplated  by  its  authors.  It  was  the  inviola- 
bility of  private  contract  and  private  rights  acquired  under 
them  which  was  intended  to  be  protected  ;(.">)  and  not  con- 
tracts which  are  in  their  nature  matters  of  civil  police,  nor 
to  grants  by  a  state,  of  power  and  even  property  to  individ- 
uals in  trust  to  be  administered  for  purposes  merely  publicl*. 
( ;)  <;  i',uk.r,)T11.  5S'>. 

( \)  •',  Crunch   138. 

I'i     I    .!.  No. -Si     -1  Tu-Jcrj"    Ular.Com.mnl.  Appr.  51V? 


290  DARTMOUTH  COLLEGE  VS.  WOODWARD 

"  The  prohibitions  not  to  make  any  thing  but  gold  and  silver 
coin  a  tender  in  payment  of  debts,  and  not  to  pass  any  law 
impairing  the  obligation  of  contracts,"  says  Mr.  Justice 
Chase  "  were  intended  to  secure  private  rights"  (6).  The 
cases  determined  in  this  court  illustrate  the  same  construc- 
tion of  this  clause  of  the  constitution.  Fletcher  vs.  Pock. 
was  a  case  where  a  state  legislature  attempted  to  revoke  its 
grant  so  as  to  divest  a  beneficial  estate  in  lands,  and  vested 
estate, — an  actual  conveyance  to  individuals  as  their  private 
property  (7).  In  the  case  of  New- Jersey  vs.  Wilson,  there 
was  an  express  contract  contained  in  a  publick  treaty  of  ces- 
sion with  the  Indians,  by  which  the  privilege  of  perpetual 
exemption  from  taxation  was  indelibly  impressed  upon  the 
lands,  and  could  not  be  taken  away  without  a  violation  of  the 
publick  faith,  solemnly  pledged  (8).  Terrett  vs.  Taylor  was 
also  a  case  of  an  attempt  to  divest  an  interest  in  lands  actual- 
ly vested  under  an  act  amounting  to  a  contract (9).  In  all 
these  instances  the  property  was  held  by  the  grantees,  and 
those  to  whom  they  had  conveyed,  beneficially,  and  under 
the  sanction  of  contracts  in  the  ordinary  and  popular  significa- 
tion of  that  term — But  this  is  an  attempt  to  extend  its  obvi- 
ous and  natural  meaning,  and  to  appty  it  by  a  species  of  le- 
gal fiction  to  a  class  of  cases  which  have  always  been  sup- 
posed to  be  within  the    controul   of  the  sovereign    power. 

Charters  to  publick  corporations,,  for  purposes  of  publick 
policy,  are  necessarily  subject  to  the  legislative  discretion, 
which  may  revoke  or  modify  them  as  the  continually  fluctuat- 
ing exigencies  of  the  society  may  require.  Incorporations  for 
the  purposes  of  education,  and  other  literary  objects,  in  one 
age,  or  under  one  form  of  government,  may  become  unfit  for 
the  office  in  another  age,  or  under  another  government. 

This  charter  is  said  to  be  a  contract  between  Dr.  Whee 
lock  and  the  king  ;  a  contract  founded  on  a  donation  of  pri 

(C)  Calder  ct  ux.  vs.  Bull  et  ux.  3  Dall.  390. 

(7)  0  Cranch  87 

(8)  7  Crunch  1C4. 

(9)  9  Craaeh  43. 


SUPREME  COURT,  UNITED  STATES.  '29 1 

■sate  property  by  Dr.  Wheelock,  it  is  hence  inferred  that  it 
is  a  private  eleemosynary  corporation  ;  and  the  right  of 
visitation  is  said  to  be  in  the  fouwler  and  his  heirs:  and  that 
the  state  can  have  no  right  to  interfere,  because  it  is  neither 
the  founder  of  this  charity,  nor  a  contributor  to  it.  But  if 
the  basis  of  this  argument  is  removed,  what  becomes  of  the 
superstructure  ?  The  fact  that  Dr.  Wheelock  was  a  con- 
tributor is  not  found  by  the  special  verdict  : — and  not 
having  been  such  in  truth  it  cannot  be  added  under 
the  agreement  to  amend  the  special  verdict.  The  jury  find 
the  charter,  and  that  does  not  recite  that  the  college  was  a 
private  foundation  by  Dr.  Wheelock.  On  the  contrary, 
the  real  state  of  the  case  is,  that  he  was  the  projector;  that 
he  had  a  school  on  his  own  plantation  for  the  education  of 
Indians ;  and,  through  the  assistance  of  others,  had  been 
employed  for  several  years  clothing,  maintaining,  and  ed- 
ucating them. — He  solicited  contributions,  and  appointed 
others  to  solicit.  At  the  foundation  of  the  college,  the  in- 
stitution was  removed  from  his  estate.  The  honours  paid 
to  him  by  the  charter  were  the  reward  of  past  services, 
and  of  the  boldness  as  well  as  piety  of  the  project.  The 
etatc  has  been  a  contributor  of  funds,  and  this  fact  is  found. 
li  is  therefore  not  a  private  charity,  but  a  publick  institu- 
tion ;  subject  to  be  modified,  altered,  and  regulated  by  the 
supreme  power  of  the  stale. 

This  charter  is  not  a  contract  within  the  true  intent  of 
the  constitution.  The  acts  of  New-Hampshire,  varying  in 
s*>me  degree  the  forms  of  the  charter,  do  not  impair  the  ob- 
ligation of  a  contract. 

In  a  case  which  is  really  a  case  of  contract,  there  is  no 
difficulty  in  ascertaining  who  are  the  contracting  parties. 
But  here  they  cannot  be  fixed.  Dr.  Wheelock  can  only 
be  said  to  be  a  party  on  the  ground  of  his  contributing 
funds,  and  thus  being  the  founder  and  visitor.  Thai  ground 
being  lcmoved,  he  ceases    lo    be    a   party  to   the  contract 


*292  DARTMOUTH  COLLEGE  VS.  WOODWARD. 

Are  the  other  contributors  alluded  to  in  the  charter  and 
enumerated  by  Belknap  in  his  History  of  New-Hampshire, 
are  they  contracting  parties  ?  They  are  not  before  the  court; 
and  even  if  they  were,  with  whom  did  thejg  contract  ?  With 
the  king  of  Great  Britain  ?  lie  too  is  notibefore  the  court  ; 
and  has  declared,  by  his  chancellor,  in  Ihel.case  of  the  At- 
torney  General  vs.  The  City  of  Londoi*mat  he  has  no 
longer  any  connection  with  these  corporarjpufifiin  America. 
Has  the  state  of  New-Hampshire  taken  hisjfiiraft?  Neither 
is  that  state  before  the  court,  nor  can  it  be^afcj^aMparty  orig- 
inally defendant. — But  suppose  this  to  be  a  tCcofl.tr act  be- 
tween the  trustees  and  the  people  of  New-IIamritehire.     A 


contract  is  always  for  the  benefit  and  advantage*of  some 
person.  This  contract  cannot  be  for  the  benefit,  of  the 
trustees.  It  is  for  the  use  of  the  people.  The  cestui  que 
use  is  always  the  contracting  party  :  the  trustee  haSjiiolh- 
ing  to  do  vvith  stipulating  the  terms.  The  people  then  grant 
powers  for  their  own  use.  It  is  a  contract  with  them- 
selves ! 

But  if  the  trustees  are  parties  on  one  side,  what  do  they 
give,  and  what  do  they  receive  ;  they  give  their  time  and 
labour.  Every  society  has  a  right  to  the  services  of  its 
members  in  places  of  publick  trust  and  duty.  A  town  ap- 
points, under  the  authority  of  the  state,  an  overseer  of  the 
poor,  or  of  the  highways.  He  gives,  reluctantly,  his  la- 
bour and  services  ;  he  receives  nothing  in  return  but  the 
privilege  of  giving  his  labour  and  services.  Such  appoint- 
ments to  offices  of  publick  trust,  have  never  been  considered 
as  contracts  which  the  sovereign  authority  was  not  compe- 
tent to  rescind  or  modify.  There  can  be  no  contract  in 
which  the  party  does  not  receive  some  personal,  private, 
conditional  benefit.  To  make  this  charter  a  contract,  (here 
must  be  a  private  beneficial  interest  vested  in  the  party  in 
the  present  case.  The  right  of  appointing  the  president 
and  professors  of  the  college,  and  of  establishing  ordinances 


SUPREME  COURT,  UNITED  STATES.  295 

for  its  government.  Sec.  But  to  make  these  rights  an  inter- 
est which  will  constitute  the  end  and  object  of  a  contract, 
the  exercise  of  these  rights  must  be  for  the  private  individu- 
al advantage  of  the  trustees.  Here  however,  so  far  from 
that  being  the  fact,  it  is  solely  for  the  advantage  of  the  pub- 
lick  ;  for  the  interest  of  piety  and  learning.  It  was  upon 
these  principles,  that  lord  Kenyon  determined  in  the  case  of 
Weller  vs.  Foundling  Hospital, (10)that  the  governours  and 
members  of  the  corporation  were  competent  witnesses,  be- 
cause they  were  mere  trustees  of  a  publick  charity,  and  had 
no  private  personal  interest. 

It  is  not  meant  to  deny  that  mere  right, — a  franchise, — 
or  incorporeal  hereditament,    may  be  the  subject  of  a  con- 
tract.    But  it  must  always  be  a  direct,  individual,  beneficial 
interest  to  the  party  who  takes   that  right.     The   rights  of 
municipal  corporators  are  of  this  nature.     The  right  of  suf- 
frage there  belongs  beneficially  to  the  individual  elector,  and 
is  to  be  exercised  for  his  own    exclusive  advantage.      It  is 
in  relation   to  these    town  corporations,   that    lord    Kenyon 
speaks,  when  he  says  that  the  king  cannot  force  a  new  char- 
ter upon  them(ll).      This  principle    is  established    for    the 
benefit  of  all  the  corporator?.      It  is  accompanied  by  anoth- 
er principle,  without  which  i!  could  never  have  been  adopt- 
ed,— the  power  of  proposing  amendments  at  the    desire   of 
those  for  whose  benefit  the  charter  was  granted.   These  two 
principles  work  together  for  the  good  of  the  whole.     By  the 
one,  these  municipal  corporations  are  saved  from  the  tyran- 
ny of  tin*  crown,  and  by  the  other  they  are  preserved  from 
the  infinite  perpetuity  of  inveterate  errors.     But  in  the  pres- 
ent ease  (here  is  no  similar  qualification  of  the  immutability 
<)f  (lie  charter  which  is  contended  for  on  the  oilier  side.    But 
in  trulli,  neither  the  original  principle,  nor  it.-,    qualification 
applies  to  this  ease  ;  for  there  is  here  no  such   beneficial  in- 
terest and  individual  property,  as  are*  enjoyed  by  town  cor- 
porators*. 

In)   (',    X-\   S.  I'..-      >'   !     ':. 


294  DARTMOUTH  COLLEGE  VS.  WOODWARD. 

3.  But  even  admitting  it  to  be  a  case  of  contract,  its  ob- 
ligation is  not  impaired  by  these  legislative  acts.  What 
vested  right  has  been  divested?  None  ! — The  former  trus- 
tees are  continued.  It  is  true  that  new  trustees  are  added 
but  this  affords  no  reasonable  ground  of  complaint.  The 
privileges  of  the  house  of  lords  in  England  are  not  impaired 
by  the  introduction  of  new  members.  The  old  corporation 
is  not  abolished,  for  the  foundation  as  now  regulated,  is  sub- 
stantially the  same.  It  is  identical  in  all  its  essential  con- 
stituent parts,  and  all  its  former  rights  are  preserved  and 
confirmed (12).  The  change  of  name  does  not  change  its 
original  rights  and  franchises (13). 

By  the  revolution,  which  separated  this  country  from  the 
British  empire,  all  the  powers  of  the  British   government 
devolved  on  the  States.      The  legislature  of  New-Hamp- 
shire then  became  clothed  with  all  the  powers  of  both  the 
king  and  parliament  over  these  pub!ick  institutions.       On 
whom  then  did  the  title  to  the  property  of  this  college  fall  ? 
If  before  the  revolution  it  was  beneficially  vested  in  any 
private  individuals  or  corporate  body,  I  do  not  contend  that 
the  revolution  divested  it  and  gave  it  to  the  state.       But  it 
was  not  before  vested  beneficially  in  the  trustees.     The  use 
unquestionably  belonged  to  the  people  of  New-Hampshire, 
who  were  the  cestui  que  trust.     The    legal    estate  was  in- 
deed vested  in  the  trustees  before  the  revolution  by  virtue 
of  the  royal  charter  of  17G9.     But  that   charter  was  des 
troyed  by  the  revolution,  and  the  legal  estate  of  course  fell 
upon  those,  who  held  the  equitable  estate  ;  upon   the  peo- 
ple.    If  those  who  were  trustees  carried    on    the  duties  of 
the  trust  after  the  revolution,  it  must  have  been   subject  to 
the  power  of  the  people.     If  it  be   said  that  the  state  gave 
its   implied  assent  to  the  terms  of   the  old  charter,   then 
it  must  be  subject  to  all  the  terms  on  which  it  was  granted  ; 
and  among  these,  to  tiie  oath  of  allegiance  to  the  king.     But 

(12J  3  Burr.  10f.f>. 
*    (13)  1  Swmd  341.  n.  t.  Lutrell'scase  —  1  Co  Rep.  8* 


SUPREME  COURT,  UN1TKD  STATES  295 

if,  to  avoid  this  concession,  it  be  said  that  the  charter  must 
have  been  so  far  modified  as  to  adapt  it  to  the  character  of 
the  new  government,  and  to  the  change  in  our  civil  institu- 
tions, that  is  precisely  what  we  contend  for.  These  civil 
institutions  must  be  modified  and  adapted  to  the  mutations- 
of  society  and  manners.  They  belong  to  the  people, — are 
established  for  their  benefit, — and  ought  to  be  subject  to 
their  authority. 


Mr.  Mopkinson,  in  reply. — I  shall  confine  myself  to  the 
proper  business  of  a  reply,  and  think  that  I  may  even  spare 
myself  the  trouble  of  a  detailed  and  minute  answer  to  all  the 
arguments  and  observations  which  have  been  presented  on 
the  other  side.  If  the  argument  for  the  defendant  in  eiror 
is  unsound,  it  is  radically  unsound.  The  error  lies  deep. 
It  is  not  in  the  inference  but  in  the  premises.  It  is  not,  that 
the  course  of  observations  which  has  been  adopted  by  Mr. 
Attorney  General  and  his  learned  colleague  has  sometimes 
deviated  from  the  settled  and  deep-worn  channels  of  the 
law.  There  is,  as  I  imagine  error  at  the  fountain.  The 
whole  argument  proceeds  on  an  assumption  which  is  not 
warranted,  and  cannot  be  maintained.  The  corporation 
created  by  this  charter  is  called  a  jntblick  corporation.  Its 
members  are  said  to  be  publick  officers,  and  agents  of  gov- 
ernment. They  were  officers  of  the  king,  it  is  said,  before 
the  revolution,  and  they  are  officers  of  the  state  since.  But 
upon  what  authority  is  all  this  taken?  What  is  the  acknowl- 
edged principle  which  decides  thus  of  this  corporation? 
Where  are  the  cases  in  which  such  a  doctrine  has  ever 
prevailed?  No  case,  no  book  of  authority,  has  been,  or  can 
be  cited  to  this  purpose.  There  is  said  to  be  no  royal  road 
to  geometry,  but  here  would  seem  to  be  a  royal  road  of  log- 
ick  and  of  argument,  for  the  defendant  taking  at  once  for  gran- 
ted, every  thins  that  is  disputed,  makes  his  progress  to  the 


296  DARTMOUTH  COLLEGE  VS.  WOODWARD. 

end  of  his  case,  without  the  least  possible  obstruction.  Ev- 
ery writer  on  the  law  of  corporations,  all  the  cases  in  law 
and  equity,  instruct  us  that  colleges  are  regarded  in  law,  as 
private  eleemosynary  corporations,  especially  colleges  found- 
ed, as  (his  was  by  a  private  founder.  If  this  settled  princi- 
ple be  not  overthrown  there  is  no  foundation  for  the  defen- 
dant's argument. 
}  We  contend  that  this  charter  is  a  contract  between  the 
1  government  and  the  members  of  the  corporation  created  by 
i  it.  It  is  a  contract,  because  it  is  a  grant  of  valuable  rights 
and  privileges  ;  and  every  grant  implies  a  contract  not  to 
resume  the  thing  granted.  Publick  offices  are  not  created 
by  contract  or  by  charter.  They  are  provided  for  by 
general  laws.  Judges  and  magistrates  do  not  hold  their  of- 
fices under  charters.  These  offices  are  created  by  publick 
laws  for  publick  political  purposes,  and  filled  by  appointments 
made  in  the  exercise  of  political  power.  There  is  nothing 
like  this  in  the  origin  of  the  powers  of  the  plaintiffs.  Nor 
is  there  in  their  duties  any  more  than  in  their  origin,  any 
thing  which  likens  them  to  publick  political  agents.  Their  du- 
ties are  such  as  they  themselves  have  chosen  to  assume,  in 
relation  to  a  fund  created  by  private  benefaction,  for  chari- 
table uses.  These  duties  relate  to  the  instruction  of  youth 
but  instructors  of  youth  are  not  publick  officers.  The  ar- 
gument on  the  other  side,  if  it  proves  any  thing,  will  prove 
that  professors,  masters,  preceptors  and  tutors  are  all  politi- 
cal persons  and  publick  officers  ;  and  that  all  education  is 
necessarily  and  exclusively  the  business  of  the  state.  The 
confutation  of  such  an  argument  lies  in  staling  it.  The  trus- 
tees of  this  college  perform  no  duties,  and  have  no  responsi- 
bility in  any  way  connected  with  the  civil  government  of  the 
state.  They  derive  no  compensation,  for  their  services 
from  the  publick  treasury.  They  are  the  gratuitous  admin- 
istrators of  a  private  bounty  ;  the  trustees  of  a  literary  es- 
tablishment standing  in  contemplation  of   law,    on   the  same 


SUPREME  COURT,  UNITED  STATES.  297 

foundation  ag  hospitals,  and  other  charities.  It  is  true,  that 
a  college  in  a  popular  sense,is  a  publick  institution,  because 
its  uses  are  publick,  and  its  benefits  may  be  enjoyed  by  all 
who  choose  to  enjoy  them.  But  in  a  legal  and  technical 
sense  they  are  not  publick  institutions,  but  private  charities. 
Corporations  may  therefore  be  very  well  said  to  be  for  pub- 
lick use,  of  which  the  property  and  privileges  are  yet  pri- 
vate. Indeed  there  may  be  supposed  to  be  an  ultimate  ref- 
erence to  the  publick  good,  in  granting  all  charters  of  incor^ 
poration  ;  but  this  does  not  change  (he  property  from  pri- 
vate to  publick.  If  the  property  of  this  corporation  be  pub- 
lick property,  that  is,  property  belonging  to  the  state,  when 
did  it  become  so?  It  was  once  private  property,  when  was 
it  surrendered  to  the  publick  ?  The  object  in  obtaining  the 
charter,  was  not  surely,  to  transfer  the  property  to  the  pub- 
lick, but  to  secure  it  forever  in  the  hands  of  those  with  whom 
the  original  owners  saw  fit  to  entrust  it.  Whence,  then, 
that  right  of  ownership  and  controul  over  this  property, 
which  the  legislature  of  New-Hampshire  has  undertaken  to 
exercise? 

The  idea  that  this  is  a  publick  corporation  was  taken  in 
the  court  below.  The  decision  in  that  court  was  founded 
upon  it.  Il  relied  on  here,  and  yet  all  the  reasoning,  and 
every  decided  case  refutes  the  error.  The  distinction  be- 
tween publick, political, or  civil  corporations, and  corporations 
for  the  distribution  of  private  charity,  is  fully  explained, 
and  broadly  marked,  in  the  cases  which  have  been  cited, 
and  to  which  no  answer  has  been  given.  The  hospital  of 
Pennsylvania  is  quite  as  much  a  publick  corporation  as  this 
college.  It  has  great  funds,  most  wisely  and  beneficently 
administered.  Is  it  to  be  supposed  that  the  legislature 
might  rightfully  lay  its  hands  on  this  institution,  violate  its 
charter  and  direct  its  funds  to  any  purpose  which  its  pleas- 
ure might  prescribe7  The  property  of  this  college  was  pri- 
vate property  before  thr  rharter :  and  the  charter  ha? 
39 


29&  DARTMOUTH  COLLEGE  VS.  WOODWATU). 

wrought  no  change  in  the  nature  or  title  of  this  property- 
The  school  had  existed  as  a  charily  school,  for  years  before 
the  charter  was  granted.  During  this  time  it  was  manifest- 
ly a  private  charity.  The  case  cited  from  Alkyns  shews 
that  a  charter  does  not  make  a  charity  more  publick,  but  on- 
ly more  permanent.  Before  he  accepted  the  charter,  the 
founder  of  this  college  possessed  an  absolute  right  to  the 
property  with  which  it  was  endowed,  and  also  the  right 
flowing  from  that  of  administering  and  applying  it  to  the  pur- 
poses of  the  charity  by  him  established.  By  taking  the 
charter  he  assented  that  the  right  to  the  property,  and  the 
power  of  administering  it,  should  go  to  the  corporation  of 
which  he  and  others  were  members.  The  beneficial  pur- 
pose to  which  the  property  was  to  be  used,  was  the  consid- 
eration on  the  part  of  the  government  for  granting  the  char- 
ter. The  perpetuity  which  it  was  calculated  to  give  to 
the  charity,  was  the  founder's  inducement  to  solicit  it.  By 
this  charter  the  publick  faith  is  solemnly  pledged,  that  the 
arrangement  thus  made  shall  be  perpetual.  In  considera- 
tion, that  the  founder  would  devote  his  property  to  the  pur- 
poses beneficial  to  the  publick,  the  government  has  solemn- 
ly covenanted  with  him  to  secure  the  administration  of  that 
property  in  the  hands  of  trustees  appointed  in  the  charter. 
And  yet  the  argument  now  is,  that  because  he  so  devoted 
his  property  to  uses  beneficial  to  the  publick,  the  government 
may  for  that  reason,  assume  the  controul  of  it,  and  take  it 
out  of  those  hands  to  which  it  was  confided  by  the  charter. 
In  other  words  because  the  founder  has  strictly  performed 
the  contract  on  his  part,  the  government  on  its  part,  is  at 
liberty  to  violate  it.  This  argument  is  equally  sound  in 
morality  and  in  law.  The  founder  proposed  to  appropriate 
his  property  and  to  render  his  services  upon  condition  of  re- 
ceiving a  charter  which  should  secure  to  him  and  his  asso- 
ciates certain  privileges  and  immunities.  He  undertook 
ihe  discharge  of  certain  duties,  in  consideration  of  obtaining 


SUPREME  COURT,  UNITED  STATES.  2S8 

oertain  rights.  There  are  rights  aad  duties  on  both  sides. 
On  the  part  of  the  founder,  there  is  the  duty  of  appropriat- 
ing the  property,  and  of  rendering  the  services  imposed 
on  him  by  the  charter,  and  the  right  of  having  secured  to 
him  and  his  associates,  the  administration  of  the  charity,  ac- 
cording to  the  terms  of  the  charter,  forever.  On  the  part 
of  the  government  there  is  the  duty  of  maintaining  and  pro- 
tecting all  the  rights  and  privileges  conferred  by  the  charter 
and  the  right  of  insisting  on  the  compliance  of  the  trustees 
with  the  obligations  undertaken  by  them,  and  of  enforcing 
that  compliance  by  all  due  and  regular  means.  There  is  a 
plain,  manifest,  reasonable  stipulation, mixed  up  of  rights  and 
duties  which  cannot  be  separated  but  by  the  hand  of  injus- 
tice and  violence.  Yet  the  attempt  now  is  to  break  the  mu- 
tuality of  this  stipulation  ;  to  hold  the  founder's  property,  and 
yet  take  away  that  which  was  given  him  as  the  considera- 
tion upon  which  he  parted  with  his  property.  The  charter 
was  a  grant  of  valuable  powers  and  privileges.  The  state 
now  claims  the  right  of  revoking  this  grant  without  restor- 
ing the  consideration  which  it  received  for  making  the  grant. 
Such  a  pretence  may  suit  sovereign  power.  It  may  suc- 
ceed where  the  authority  of  the  legislature  is  limited  by  no 
rule,  and  bounded  only  by  its  will.  It  may  prevail  in  those 
systems  in  which  injustice  is  not  always  unlawful,  and  where 
neither  the  fundamental  constitution  of  the  government  sets 
any  limits  to  power,  nor  any  just  sentiment  or  moral  feeling 
affords  a  practical  restraint  against  a  power  which  in  its  the- 
ory is  unlimited.  But  it  cannot  prevail  in  the  United  States 
where  power  is  restrained  by  constitutional  barriers,  and 
where  no  legislature  i3,  even  in  theory,  invested  with  all  sov- 
ereign powers. 

Suppose  ])r.  AVhcelock  had  chosen  to  establish,  and  per- 
petuate this  charity  by  his  la<t  will,  or  by  a  deed  ;  in  which 
he  had  given  the  property;  appointed  the  trustees  ;  pio\id- 
"d  for  (heir  succession,  and  pi ••-,>:'!>ed  their  duti'*-'.     (.'mild 


SOO      DARTMOUTH  COLLEGE  VS.  WOODWARD. 

the  legislature  of  New-Hampshire  have  broken  in  upon  this 
gift ;  changed  its  parties  ;  assumed  the  appointment  of  the 
truslfes;  abolished  its  stipulations  and  regulations  or  impos- 
ed others  ?  This  will  hardly  be  pretended  even  in  this  bold 
and  hardy  argument — and  why  not  ?  Because  the  gift,  with 
all  its  restrictions  and  provisions,  would  be  under  the  gener- 
al and  implied  protection  of  the  law.  Uow  is  it  in  our  case  ? 
Why,  m  addition  to  the  general  and  implied  protection  af- 
forded to  all  rights  and  all  property,  it  has  an  express,  spe- 
citick,  covenanted  assurance  of  protection  and  inviolability, 
given  on  goudand  sufficient  considerations  in  the  usual  man- 
ner of  contracts  between  individuals. 

There  can  be  no  doubt,  that  in  consideration  of  law  a  char- 
ter, such  as  this,  i3  a  contract.  It  takes  effect  only  with 
the  assent  of  those  to  whom  it  is  granted.  Laws  enjoin  du- 
ties, without  or  against  the  will  of  those  who  are  to  perform 
them.  But  the  duties  of  the  trustees  under  this  charter  are 
binding  upon  them  only  because  they  have  accepted  the 
charter  and  assented  to  its  terms. 

But  taking  this  to  be  a  contract,  the  argument  of  the  de- 
fendant is,  that  it  is  not  such  a  contract,  as  the  constitution 
of  the  United  States  protects.  But  why  not?  The  consti- 
tution speaks  of  contracts,  and  ought  to  include  all  contracts 
for  property  or  valuable  privileges.  There  is  no  distinction 
or  discrimination  made  by  the  constitution  itself,  which  will 
exclude  this  case  from  its  protection.  The  decisions  which 
have  already  been  made  in  this  court  are  a  complete  answer 
to  the  defendant's  argument.  Terrell  vs.  Tat/lor  meets  and 
refutes  all  this  reasoning. 

The  Attorney  Genera!  has  insisted  that  Dr.  Wheelock  was 
not  the  founder  of  this  college  ;  that  other  donors  have  bet- 
ter title  to  that  character;  and  that  therefore  the  plaintiff's 
argument,  so  far  as  it  rests  on  the  supposed  fact  of  Dr. 
Wheelock's  being  founder  fails.  The  first  answer  to  this,  is, 
\hat  the  charter  itself  declares  Dr.  Wheelock  to  be  founder, 


SUPREME  COURT,  UNITED  STATES.  301 

in  express  terms.  It  also  recites  facts,  which  would  shew 
him  to  be  founder,  and  on  which  the  law  would  invest  him 
with  that  character,  if  the  charter  itself  had  not  declared  him 
so.  But  if  all  this  were  otherwise,  it  would  not  help  the  de- 
fendant's argument.  The  foundation  was  still  private,  and 
whether  Dr.  Wheelock,  or  lord  Dartmouth,  or  any  other 
person  possessed  the  greatest  share  of  merit  in  establishing 
the  college,  the  result  is  the  same,  so  far  as  it  bears  on  the 
present  question.  Whoever  was  founder,  the  visitatorial  pow- 
er was  assigned  to  the  trustees,  by  the  charter  ;  and  it  there- 
fore is  of  no  importance  whether  the  founder  was  one  indi- 
vidual or  another.  It  is  narrowing  the  ground  of  our  ar- 
gument to  suppose  that  we  rest  it  on  the  particular  fact  of 
Dr.  Wheelock's  being  founder  ;  although  that  fact  is  fully 
established  by  the  charter  itself.  Our  argument  is,  that  this 
is  a  private  corporation  ;  that  the  founder  of  the  charity, 
before  the  charter,  had  a  right  of  visiting  and  governing  it — 
a  right  growing  out  of  the  property  of  the  endowment ;  that 
by  the  charter  this  visitatorial  power  is  vested  in  the  trustees, 
as  assignees  of  the  founder;  and  that  it  is  a  privilege,  right, 
and  immunity,  originally  springing  from  property,  and 
which  the  law  regards  and  protects,  as  much  as  it  regards 
and  protects  property  and  privileges  of  any  other  descrip- 
tion. By  the  charter  all  proper  powers  of  government  are 
given  to  the  trustees  and  this  makes  them  visitors,  and  trom 
the  time  of  the  acceptance  of  the  charter  no  visitatorial  pow- 
er remained  in  the  founder  or  his  heirs.  This  is  the  clear 
doctrine  of  the  case  of  Green  vs.  Rutherforth,  which  has 
been  cited,  and  which  is  supported  by  all  the  oilier  cases. 
Indeed  we  need  not  stop  here  in  the  argument.  We  might 
go  farther,  and  contend,  that  if  there  were  no  private  founder, 
the  trustees  would  possess  the  visitatorial  power.  \\  here 
there  are  charters,vesting  the  usual  and  proper  powers  of  gov- 
ernment in  the  trustees,  they  thereby  become  the  visitors, 
and  the  founder  retains  no  \  -sitatorial  power,  although    that 


302 


DARTMOUTH  COLLEGE  VS.  WOOTHVAIH). 


founder  be  the  king(l).  Even  then  if  this  college  had 
originated  with  the  government,  and  had  been  founded  by 
it ;  still,  if  the  government  had  given  a  charter  to  trustees  and 
conferred  on  them  the  powers  of  visitation,  and  controul, 
which  this  charter  contains,  it  would  by  no  means  follow 
that  the  government,  might  revoke  the  grant,  merely  be- 
cause it  had  itself  established  the  institution.  Such  would 
not  be  the  legal  consequence.  If  the  grant  be  of  privileges 
and  immunities,  which  are  to  be  esteemed  objects  of  value, 
it  cannot  be  revoked.  But  this  case  is  much  stronger  than 
that.  Nothing  is  plainer,  than  that  Dr.  Wheelock,  from  the 
recitals  of  this  charter,  was  the  founder  of  this  institution. 
It  is  true,  that  others  contributed  ;  but  it  is  to  be  remem- 
bered, that  they  contributed  to  Dr.  Wheelock,  and  to  the 
funds  while  under  his  private  administration  and  controul, and 
before  the  idea  of  a  charter  had  been  suggested.  These 
contributions  were  obtained,  on  his  solicitation,  and  confided 
to  his  trust.  The  history  of  the  college  evinces  his  zeal, 
perseverance  and  ability ;  and  it  is  not  the  kindest  return 
which  might  be  made  for  his  laudable  and  useful  exertions, 
thus  to  deny  to  his  name  and  character  the  merit  which  be- 
longs te  them. 

If  we  have  satisfied  the  court  that  this  charter  must  be 
regarded  as  a  contract,  and  such  a  contract  as  is  protected  by 
the  constitution  of  the  United  States,  it  will  hardly  be  seri- 
ously denied  that  the  acts  of  the  legislature  of  New-Hampshire 
impair  this  contract.  They  impair  the  rights  of  the  corpo- 
ration as  an  aggregate  body,  and  the  rights  and  privileges  of 
individual  members.  New  duties  are  imposed  on  the  cor- 
poration ;  the  funds  are  directed  to  new  purposes ;  a  con- 
trolling power  over  all  the  proceedings  of  the  trustees  is 
vested  in  a  board  of  overseers  unknown  to  the  charter.  Nine 
uew  trustees  are  added  to  the  original  number  in  direct  hos- 
tility with  the  provision  of  the   charter.     There  are  radical 

(l)  2  "Ves.  Senr.  528.  and  1.  Ves-  78. 


SUPREME  COURT,  UNITED  STATES.  303 

and  es&ential  alterations,    which  go  to   alter  the  whole  or- 
ganization and  frame   of  the  corporation. 

If  we  are  right  in  the  view,  which  we  have  taken  of  this 
case,  the  result  is — That  before,  and  at  the  time  of  the 
granting  of  this  charter,  Ur.  Wheelock  bad  a  legal  interest 
in  the  funds,  with  which  the  institution  was  founded  :  That 
he  made  a  contract  with  the  then  existing  government  of  the 
state,  in  relation  to  that  interest,  by  which  he  devoted  to 
uses  beneficial  to  the  pubiick  the  funds  which  he  had  col- 
lected in  consideration  of  the  stipulations  and  covenants,  on 
the  part  of  the  government,  contained  in  the  charter;  and 
that  these  stipulations  are  violated,  and  the  contract  im- 
paired by  the  acts  of  the  legislature  of  New-Hampshire. 

Some  observations  have  been  made  upon  our  clients,  by 
the  counsel  of  their  opponents,  which,  however  they  might 
have  suited  the  meridian  of  some  petty  court  of  quarter 
sessions,  must  have  excited,  in  this  place,  some  surprise,  if 
not  disgust. — They  are  unworthy  of  the  occasion  ;  they 
are  unworthy  of  the  dignity  of  this  tribunal  ;  they  are  un- 
worthy of  this  great  and  momentous  controversy  ;  they  are 
unworthy  of  the  counsel  who  have  urged  them  upon  (he  cars 
not  the  attention  of  the  court. — We  have  been  told  that  the 
trustees  of  the  college  claim  their  rights  under  a  royal  char- 
ter ;  that  they  cling  with  fond  affection  to  this  origin  of  their 
power,  and  disdain  to  hold  it  from  a  republican  legislature. 
Nothing  but  kings  and  noblemen  will  satisfy  them  for  patrons 
and  privileges ;  while  the  independent  representatives  of 
the  freemen  of  New-Hampshire  are  contemned  and  reject- 
ed as  the  source  of  their  authority. — What  can  we  oppose 
to  such  miserable  efforts  to  sustain  violent  injustice  by  vul- 
gar prejudice  ;  and  prop  up  a  bad  cause  by  worse  argu- 
ments.— Let  them  go — with  this  one  remark  ;  that  if  the 
difference  between  a  royal  and  a  republican  charter  is,  that 
the  former  is  observed  and  maintained  with  a  sacred  and 
inviolable  fidelity;  while  the  other  i-   1o  be  the     sport   and 


304  DARTMOUTH  COLLEGE  VS.  WOODWARD. 

play -thing  of  political  interests,  caprice  and  faction,  let  me 
have  the  royal  charter  with  all  its  odium  ;  and  our  oppo- 
nents may  enjoy  all  the  pride  and  pleasure  they  can  derive 
from  the  consciousness  that  they  hold  their  rights  from,  and 
at  the  mercy  of  the  independent  representatives  of  the  free- 
men  of  New-Hampshire. — To  my  sense  of  justice  nothing 
could  be  more  unexpected  or  unfounded,  than  reproach  of 
any  sort  upon  the  trustees  of  the  college  for  their  conduct 
on  this  occasion ;  for  the  stand  they  have  made  in  this 
cause;  for  the  generous  and  manly  resistance  they  are  op- 
posing to  usurpation  and  injustice,  whether  they  march  to 
their  object  decorated  with  the  sceptre  and  trappings  of  roy- 
alty, or  would  establish  themselves  under  the  guise  of  liber- 
ty and  republicanism. — Heretofore  men  who  have  dared 
to  expose  themselves  to  the  persecution  of  power,  and  to 
encounter  the  protracted  trouble  and  expense  of  an  arduous 
litigation  for  the  maintenance  of  the  great  and  fundamental 
prmciples  of  society,  in  which  they  have  only  a  common 
interest  with  their  fellow  citizens,  have  received  the  grati- 
tude and  applause  of  the  liberal  and  enlightened  of  every 
time  and  country;  and  been  held  up  as  examples  of  patri- 
otism and  courage. — Why  shall  it  not  be  so  in  this  case  ? 
What  interest  have  the  trustees  of  the  college  in  this  ques- 
tion that  you  and  I  and  every  man  that  hears  me  has  not  ? 
What  interest  has  the  college,  whose  rights  they  defend,  to 
be  secured  here,  that  every  literary  institution  has  not? 
every  religious  corporation  ;  every  seminary  of  learning  ? 
To-day  Dartmouth  College  falls  by  the  stroke  of  a  New- 
Hampshire  legislature ;  the  outrage  receives  the  sanction 
of  the  highest  and  most  august  tribunal  of  our  country;  if 
this  learned  and  honourable  court,  which  adjudges  that  a 
charter  gives  no  rights  that  are  not  at  the  pleasure  of  state 
legislatures  ;  and  affords  no  protection  to  property  in  such 
institutions,  that  may  not  be  swept  away  by  the  violence  of 
popular  faction,  or  the  caprice  of  annual  or  semi-annual  law- 


SUPREME  COURT,  UNITED  STATES.  305 

makers.  The  principle  thus  solemnly  and  deeply  estab- 
lished, who  shall  say  what  victims  will  fall  under  its  destroy- 
ing power;  or  in  what  order  of  succession  they  will  be  led 
to  death. — Let  then  the  trustees  of  this  college  receive  the 
honour  that  is  most  justly  their  due  ;  the  honour  of  submit- 
ting themselves  to  danger  and  trouble  and  expense  for  the 
Support  of  the  justice,  and  the  law,  and  the  property  of  the 
country ;  the  honour  of  standing  forth  as  the  champions  of 
learning  and  religion  so  far  as  they  are  concerned  in  secur- 
ing the  rights  of  their  chartered  institutions,  and  the  sancti- 
ty of  their  possessions. 

But  our  opponents,  in  their  republican  zeal  for  the  des- 
potick  and  uncontroulable  power  of  the  representatives  of 
the  freemen  of  New-Hampshire,  are  too  impatient  for  the 
overthrow  of  all  our  royal  institutions  of  learning  and  relig- 
ion, to  wait  the  gradual  and  uncertain  movements  of  state 
legislatures  ;  who,  perchance,  may  now  and  then  have  some 
"  compunctious  visitings  of  conscience." — They  have, 
therefore,  come  forth  boldly  with  a  principle,  which  does 
all  the  work  at  a  blow  ;  and  whose  extravagance  can  be 
equalled  only  by  its  pernicious  and  ruinous  effects. — All 
charters  ;  all  corporations,  we  are  told,  were  dissolved 
by  our  revolution. — By  severing  the  political  connection 
between  the  United  States  and  Great  Britain,  the  pri- 
vate rights  of  our  citizens  previously  acquired  and  sol- 
emnly vested,  were  annihilated;  the  property  thus  held, 
thrown  open  for  common  occupancy,  or  to  be  seized 
upon  by  the  boldest  adventurer.  Can  this  court,  can  thia 
country  hear  such  pretensions  without  shuddering?  Shall 
we  be  called  upon  to  curse  our  revolution  as  a  great  fountain 
of  discord,  violence  and  injustice  ;  instead  of  looking  to  it 
with  reverence  and  gratitude  ;  as  the  means  of  establishing 
an  immense  empire,  in  which  the  freedom  and  rights  of  man 
shall  be  understood  and  mainiained  ;  the  government  of  the 
law  only  acknowledged  and  the  eternal  principles  of  justice 
40 


306  DARTMOUTH  COLLEGE  VS.  WOODWARD. 

secured  to  all.  Every  charter  is  annulled  ;  every  corpora- 
tion dissolved  by  the  revolution  !  In  what  dream  of  insanity 
did  tbis  monstrous  idea  engender  itself  in  the  brain  of  these 
gentlemen  ?  What  desperation  would  drive  them  to  give  it 
utterance  here  ;  and  what  delirium  has  raised  the  hope  that 
it  can  meet  a  moment's  countenance  from  the  court  ?  It 
is  enough  to  say  there  is  no  principle  of  our  revolution  that  af- 
fords any  colour  to  this  position  ;  there  is  no  decision  or  sug- 
gestion of  any  tribunal  in  our  country,  legislative  or  judicial, 
that  warrants  it  ;  but  that  the  reverse  is  to  be  found  in  the 
acts  and  records  of  every  legislature  and  every  court  of  the 
United  States.  Charters  granted  and  corporations  created 
before  the  revolution,  have,  from  time  to  time  been  recogni- 
zed, in  some  way,  by  every  state  of  our  union  ;  by  their 
courts,  and  by  this  court  ;  and  it  is  not  possible  to  give  a 
greater  shock  to  the  good  sense,  the  virtue  and  the  char- 
acter of  our  country,  than  would  be  felt  by  the  establish- 
ment of  this  most  wild  and  pernicious  pretension. 


After  the  argument  the  court  continued  the  cause  for  ad- 
visement. At  the  February  term  1819,  on  the  second  day 
of  the  term,  Mr.  Justice  Todd  being  absent,  the  judgment 
of  the  court  was  pronounced  by 

Mr.  Chief  Justice  Marshall — This  is  an  action  of 
trover,brought  by  the  Trustees  of  Dartmouth  College  against 
William  H.  Woodward,  in  the  state  court  of  New-Hamp- 
shire, for  the  book  of  records,  corporate  seal,  and  other 
corporate  property,  to  which  the  plaintiffs  allege  themselves- 
to  be  entitled.  , 

A  special  verdict,  after  setting  out  the  rights  of  the  par- 
ties, finds  for  the  defendant,  if  certain  acts  of  the  legislature 
of  New-Hampshire,  passed  on  the  27th  of  June,  and  on 
the  18th  of  December,  1  "16,  be  valid,  and   binding  on   the 


SUPREME  COURT,  UNITED  STATES.  307 

trustees  without  their  assent,  and  not  repugnant  to  fhe  con- 
stitution of  the  United  States  ;  otherwise,  it  finds  for  the 
plaintiffs. 

The  superiour  court  of  judicature  of  New-Hampshire 
rendered  a  judgment  upon  this  verdict  for  the  defendant, 
which  judgment  has  been  brought  before  this  court  by  writ 
of  error.  The  single  question  now  to  be  considered  is, 
Do  the  acts,  to  which  the  verdict  refers,  violate  the  consti- 
tution of  the  United  States  ? 

This  court  can  be  insensible  neither  to  the  magnitude  nor 
delicacy  of  this  question.  The  validity  of  a  legislative  act 
is  to  be  examined  ;  and  the  opinion  of  the  highest  law  tri- 
bunal of  a  state  is  to  be  revised  ; — an  opinion,  which  carries 
with  it  intrinsic  evidence  of  the  diligence,  of  the  ability,  and 
the  integrity,  wilh  which  it  was  formed.  On  more  1han  one 
occasion,  this  court  has  expressed  the  cautious  circumspec- 
tion, with  which  it  approaches  the  consideration  of  such 
questions  ;  and  has  declared,  that,  in  no  doubtful  case, 
would  it  pronounce  a  legislative  act  to  be  contrary  to  the 
constitution.  But  the  American  people  have  said  in  the 
constitulion  of  the  United  States,  that  "No  stale  shall  pasi 
"  any  bill  of  attainder,  ex  post  facto  law,  or  law  impairing 
"  the  obligation  of  contracts."  In  the  same  instrument 
they  have  also  said,  "that  the  judicial  power  shall  extend 
"  to  all  cases  in  law  and  equity  arising  under  the  constitu- 
tion. "  On  the  judges  of  this  court,  then,  is  imposed  the 
high  and  solemn  duty  of  protecting  from  even  legislative 
violation  those  contracts,  which  the  constitution  of  our  coun- 
try has  placed  beyond  legislative  controul;  and  however 
irksome  the  task  may  be,  this  is  a  duty,  frern  which  we  dare 
not  shrink. 

The  title  of  (he  plaintiffs  originates  in  a  charlc  r  dated  the 
13th  day  of  December,  in  the  year  ITGC),  incorporating 
twelve  persons  therein  mentioned,  by  tlie  name  of  "  The 
Trustees  of  Dartmouth  College."  granting  to  them  and  then: 


#08  DARTMOUTH  COLLEGE  VS.  WOODWARD. 

successors  the  usual  corporate  privileges  and  powers,  and 
authorizing  the  trustees,  who  are  to  govern  the  college,  to 
fill  up  all  vacancies,  which  may  be  created  in  their  own  bo- 
dj. 

The  defendant  claims  under  three  acts  of  the  legislature 
of  New-Hampshire,  the  most  material  of  which  was  passed 
on  the  27th  of  June  1816,  and  is  entitled,  "  an  act  to  amend 
"  the  charter,  and  enlarge,  and  improve  the  corporation  of 
*'  Dartmouth  College."  Among  other  alterations  in  the 
charter,  this  act  increases  the  number  of  trustees  to  twenty- 
one,  gives  the  appointment  of  the  additional  members  to  the 
executive  of  the  state,  and  creates  a  board  of  overseers  with 
power  to  inspect  and  controul  the  most  imporlant  acts  of  the 
trustees.  This  board  consists  of  twenty-five  persons.  The 
president  of  the  senate,  the  speaker  of  the  house  of  repre- 
sentatives of  New-Hampshire,  and  the  governour  and  lieu- 
tenant-governour  of  Vermont,  for  the  time  being,  are  to  be 
members  ex  officio.  The  board  is  to  be  completed  by  the 
governour  and  council  of  New-Hampshire,  who  are  also  em- 
powered to  fill  all  vacancies,  which  may  occur.  The  acts 
of  the  18th  and  '26th  of  December  are  supplemental  to  that 
of  the  2rth  of  June,  and  are  principally  intended  to  carry 
that  act  into  effect. 

The  majority  of  the  trustees  of  the  college  have  refused 
to  accept  this  amended  charter,  and  have  brought  this  suit 
for  the  corporate  property,  which  is  in  possession  of  a  per- 
son holding  by  virtue  of  the  acts,  which  have  been  stated. 

It  can  require  no  argument  to  prove,  that  the  circurastan- 
cesofthis  case  conslifule  a  contract.  An  application  is 
made  to  the  crown  for  a  charter  to  incorporate  a  religious 
and  literary  institution.  In  the  application  it  is  stated,  that 
large  contributions  have  been  made  for  the  object  which  will 
be  conferred  on  the  corporation,  as  soon  as  it  shall  be  creat- 
ed. The  charter  is  granted,  and  on  its  faith  the  property 
is  conveyed.  Surely  in  this  transaction  every  ingredient  of 
a  complete  and  legitimate  contract  is  to  be  found. 


SUPREME  COURT,  UNITED  STATES.  JJ09 

The  points  for  consideration  are, 

Ut.  Is  this  contract  protected  by  the  constitution  of  the 
United  Slates  ? 

2d.  Is  it  impaired  by  the  acts,  under  which  the  defend- 
ant holds  ? 

1st.  On  the  first  point  it  has  been  argued,  that  the  word 
"  contract"  in  its  broadest  sense  would  comprehend  the  po- 
litical relations  between  the  government  and  its  citizens,would 
extend  to  offices  held  within  a  state  for  state  purposes,  and 
to  many  of  those  laws  concerning  civil  institutions,  which 
must  change  with  circumstances,  and  be  modified  by  ordina- 
ry legislation,  which  deeply  concern  the  publick,  and  which, 
to  preserve  good  government,  the  publick  judgment  must 
controul.  That  even  marriage  is  a  contract,  and  its  obliga- 
tions are  affected  by  the  laws  respecting  divorces.  That 
the  clause  in  the  constitution,  if  construed  in  its  greatest  lat- 
itude, would  prohibit  these  laws.  Taken  in  its  broad  unlim- 
ited sense,  the  clause  would  bean  unprofitable  and  vexatious 
interference  with  the  internal  concerns  of  a  stale,  would  un 
necessarily  and  unwisely  embarrass  its  legislation, and  rentier 
immutable  those  civil  institutions,  which  are  established  for 
purposes  of  internal  government,  and  which,  lo  subserve  those 
purposes,  ought  to  vary  with  varying  circumstances.  That 
as  the  framers  of  the  constitution  could  never  have  intended 
to  insert  in  that  instrument  a  provision  so  unnecessary,  so 
mischievous  and  so  repugnant  to  its  general  spirit,  the  term 
"  contract"  must  be  understood  in  a  more  limited  sense. 
That  it  must  be  understood  as  intended  to  guard  against  a 
power  of  at  least  doubtful  utility,  the  abuse  of  vrhich  bad 
been  extensively  fell  ;  and  to  restrain  the  legislature  m  fu- 
ture from  violating  the  right  to  property.  That  anterior 
to  the  formation  of  the  constitution,  a  course  of  legislation 
had  prevailed  in  many,  if  not  in  all  of  the  slates,  which  weak- 
ened the  confidence  of  man  in  man,  and  cnibarassed  ;.'• 
transactions  between  individual-,  by  dispensing  with  a  faith 


31.0  DARTMOUTH  COLUBGE  VS.  WOODWARD- 

ful  performance  of  engagements.  To  correct  this  mischief 
by  restraining  the  power,  which  produced  it,  the  state  le- 
gislatures were  forbidden  "  to  pass  any  law  impairing  the 
"obligation  of  contracts,"  that  is,  of  contracts  respecting 
property,  under  which  some  individual  could  claim  a  right 
to  something  beneficial  to  himself;  and  that  since  the  clause 
in  the  constitution  must  in  construction  receive  some  limita- 
tion, it  may  be  confined,  and  ought  to  be  confined,  to  case* 
of  this  description  ;  to  cases  within  the  mischief,  it  was  in- 
tended to  remedy. 

The  general  correctness  of  these  observations  cannot  be 
controverted.  That  the  framers  of  the  constitution  did  not 
intend  to  restrain  the  states  in  the  regulation  of  their  civil 
institutions,  adopted  for  internal  government,  and  that  the  in- 
strument they  have  given  us,  is  not  to  be  so  construed,  may 
fee  admitted.  The  provision  of  the  constitution  never  has 
been  understood  to  embrace  other  contracts,  than  those, 
which  respect  property,  or  some  object  of  value,  and  confer 
rights,  which  may  be  asserted  in  a  court  of  justice.  It  nev- 
er has  been  understood  to  restrict  the  general  right  of  the  le- 
gislature to  legislate  on  the  subject  of  divorces.  Those  acts 
enable  some  tribunal,  not  to  impair  a  marriage  contract,  but 
to  liberate  one  of  the  parties  because  it  has  been  Inoken  by 
the  other.  When  any  state  legislature  shall  pass  an  act 
annulling  all  marriage  contracts,  or  allowing  either  party  t» 
annul  it  without  the  consent  of  the  other,  it  will  be  time 
enough  to  enquire,  whether  such  an  act  be  constitutional. 

The  parties  in  this  case  differ  lesson  general  principles, 
less  on  the  true  construction  of  the  conslitntion  in  the  ab- 
stract, than  on  the  application  of  those  principles  to  this 
case,  and  on  the  true  construction  of  the  charter  of  1769. — 
This  is  the  point,  on  which  the  cause  essentially  depends-. 
If  the  act  of  incorporation  be  a  grant  of  political  power,  if  it 
create  a  civil  institution  to  be  employed  in  the  administra- 
tion of  the  government,  or  if  the  funds  of  the  college  be  pub- 


SUPREME  COURT,  UNITED  STATES.  3Tf 

\kk  property,  or  if  (he  stale  of  New-Hampshire,  as  a  govern- 
ment, be  alone  interested  in  its  transactions,  the  subject  is 
one,  on  which  the  legislature  of  the  state  may  act  according, 
to  its  own  judgment,  unrestrained  by  any  limitation  of  its 
power  imposed  by  the  constitution  of  the  United  States. 

But  if  this  be  a  private  eleemosynary  institution,  endowed 
with  a  capacity  to  take  property  for  objects  unconnected 
with  government,  whose  funds  are  bestowed  by  individuals 
on  the  faith  of  the  charter  ;  if  the  donors  have  stipulated 
for  the  future  disposition  and  management  of  those  funds  in 
the  manner  prescribed  by  themselves  ;  there  may  be  more 
difficulty  in  the  case,  although  neither  the  persons,  who  have 
made  these  stipulations,  nor  those,  for  whose  benefit  they 
were  made,  should  be  parties  to  the  cause.  Those,  who 
are  no  longer  interested  in  the  property,  may  yet  retain  such 
an  interest  in  the  preservation  of  their  own  arrangements,  as 
to  have  a  right  to  insist,  that  those  arrangements  shall  be 
held  sacred.  Or,  if  they  have  themselves  disappeared,  it 
becomes  a  subject  of  serious  and  anxious  inquiry,  whether 
those,  whom  they  have  legally  empowered  to  represent 
them  forever,  may  not  assert  all  the  rights,  which  they  pos- 
sessed, while  in  being  ;  whether,  if  they  be  without  person- 
al representatives,  who  may  feel  injured  by  a  violation  of 
the  compact,  the  trustees  be  not  so  completely  their 
representatives  in  the  eye  of  the  law,  as  to  stand  in  their 
place,  not  only  as  respects  the  government  of  the  college, 
but  also  as  respects  the  maintenance  of  the  college  charter. 

It  becomes  then  the  duty  of  the  court  most  seriously  to 
examine  this  charter,  and  to  ascertain  its  true  character. 

From  the  instrument  itself,  it  appears,  that  about  the  year 
17 5  i,  the  Rev.  Eleazer  AVheelock  established  at  his  own  ex- 
pense, and  on  his  own  estate  a  charity  school  for  the  in- 
struction of  Indians  in  the  christian  religion.  The  success 
of  this  institution  inspired  him  with  the  design  of  soliciting 
contributions  in  England  for  carrying  on,  and  extending,  hi* 


Sit  DARTMOUTH  COLLEGE  "?8i  WOODWARD. 

undertaking.  In  this  pious  work  be  employed  the  Rev 
Nathaniel  W  hi  laker,  who,  by  virtue  of  a  power  of  attorney 
from  Dr.  Wheelock,  appointed  the  Earl  of  Dartmouth  and 
others,  trustees  of  the  money,  which  had  been,  and  should 
be,  contributed  ;  which  appointment  Dr.  Wheelock  confirm- 
ed by  a  deed  of  trust  authorizing  the  trustees  to  fix  on  a  site 
for  the  college.  They  determined  to  establish  the  school  on 
Connecticut  river,  in  the  western  part  of  New-Hampshire  ; 
that  situation  being  supposed  favourable  for  carrying  on  the 
original  design  among  the  Indians,  and  also  for  promoting 
learning  among  the  English,  and  the  proprietors  in  the 
neighbourhood  having  made  large  offers  of  land  on  condition 
that  the  college  should  there  be  placed.  Dr.  Wheelock 
then  applied  to  the  crown  for  an  act  of  incorporation  ;  and 
represented  the  expediency  of  appointing  those,  whom  he 
had  by  his  last  will  named,  as  trustees  in  America,  to  be 
members  of  the  proposed  corporation.  "  In  consideration 
"  of  the  premises,"  "  for  the  education  and  instruction  of 
"  the  youth  of  the  Indian  tribes,  &c."  "  and  also  of  English 
vouth,  and  any  others,"  the  charter  was  granted,  and  the 
trustees  of  Dartmouth  College  were  by  that  name  created  a 
body  corporate,  with  power,  for  the  use  of  the  said  college, 
to  acquire  real  and  personal  property,  and  to  pay  the  presi- 
dent, tutors,  and  other  officers  of  the  college  such  salaries 
as  they  shall  allow. 

The  charter  proceeds  to  appoint  Eleazer  Wheelock,  "  the 
founder  of  said  college,"  president  thereof,  with  power  by 
his  last  will  to  appoint  a  successor,  who  is  to  continue  in  of- 
fice, until  disapproved  by  the  trustees.  In  case  of  vacancy, 
the  trustees  may  appoint  a  president,  and  in  case  of  the 
ceasing  of  a  president,  the  senior  professor  or  tutor,  being 
one  of  the  trustees,  shall  exercise  the  office,  until  an  appoint- 
ment shall  be  made.  The  trustees  have  power  to  appoint 
and  displace  professors,  tutors  and  other  officers,  and  to  sup- 
ply any  vacancies,  which  may  be  created  in  their  own  body 


SUPREME  COURT,  UNITED  STATES.        313 

by  dealh,  resignation,  removal  or  disability ;  and  also  to 
make  orders,  ordinances,  and  laws,  for  the  government  ofthe 
college,  the  same  not  being  repugnant  to  the  laws  of  Great 
Britain,  or  of  New-Hampshire,  and  not  excluding  any  per- 
son on  account  of  his  speculative  sentiments  in  religion,  or 
his  being  of  a  religious  profession  different  from  that  of  the 
trustees. 

This  charter  was  accepted,  and  the  property  both  real 
and  personal,  which  had  been  contributed  for  the  benefit  of 
the  college,  was  conveyed  to,  and  vested  in  the  corporate 
body. 

From  this  brief  review  of  the  most  essential  parts  of  the 
charter,  it  is  apparent,  that  the  funds  of  the  college  consist- 
ed entirely  of  private  donations.  It  is  perhaps  not  very  im- 
portant, who  were  the  donors.  The  probability  is,  that  the 
Earl  of  Dartmouth  and  the  other  trustees  in  England  were, 
in  fact,  the  largest  contributors.  Yet  the  legal  conclusion 
from  the  facts  recited  in  the  charter,  would  probably  be, 
that  Dr.  Wheelock  was  the  founder  of  the  college. 

The  origin  of  the  institution  was,  undoubtedly,  the  Indian 
charity  school,  established  by  Dr.  Wheelock  at  his  own  ex- 
pense. It  was  at  his  instance,  and  to  enlarge  this  school,  that 
contributions  were  solicited  in  England.  The  person  soliciting 
these  contributions  was  his  agent ;  and  the  trustees,  who  re- 
ceived the  money,  were  appointed  by,  and  acted  under  his, 
authority.  It  is  not  too  much  to  say,  that  the  funds  were 
obtained  by  him,  in  trust  to  be  applied  by  him  to  the  purpo- 
ses of  his  enlarged  school.  The  charter  of  incorporation 
was  granted  at  his  instance.  The  persons  named  by  him  in 
his  last  will,  as  the  trustees  of  his  charity  school,  compose  a 
part  of  the  corporation,  and  he  is  declared  to  be  the  found- 
er of  the  college,  and  its  president  for  life.  Were  the  en- 
quiry material,  we  should  feel  some  hesitation  in  saying,  that 
Dr.  Wrheelock  was  not,  in  law,  to  be  considered  as  the  foun- 

U 


314  DARTMOUTH  COLLEGE  VS.  WOODWARD. 

der(l)  of  this  institution,  and  as  possessing  all  the  rights  ap- 
pertaining to  that  character.  But  be  this  as  it  may,  Dart- 
mouth college  is  really  endowed  by  private  individuals, 
who  have  bestowed  their  funds  for  the  propagation  of 
the  christian  religion  among  the  Indians,  and  for  the  promo- 
tion of  piety  and  learning  generally.  From  these  funds  the 
salaries  of  the  tutors  are  drawn  ;  and  these  salaries  lessen 
the  expense  of  education  to  the  students.  It  is  then  an  el- 
eemosynary,(2)  and,  as  far  as  respects  its  funds,  a  private 
corporation. 

Do  its  objects  stamp  on  it  a  different  character  ?  Are  the 
trustees  and  professors  publick  officers,  invested  with  any 
portion  of  political  power,  partaking  in  any  degree  in  the  ad- 
ministration of  civil  government,  and  performing  duties, 
which  flow  from  the  sovereign  authority  ? 

That  education  is  an  object  of  national  concern,  and  a 
proper  subject  of  legislation,  all  admit.  That  there  may  be 
an  institution  founded  by  government,  and  placed  entirely 
under  its  immediate  controul,  the  officers  of  which  would  be 
publick  officers,  amenable  exclusively  to  government,  none 
will  deny.  But  is  Dartmouth  College  such  an  institu- 
tion ?  Is  education  altogether  in  the  hands  of  government  ? 
Does  every  teacher  of  youth  become  a  publick  officer,  and 
do  donations  for  the  purposes  of  education  necessarily  be- 
come publick  property,  so  far  that  the  will  of  the  legislature, 
not  the  will  of  the  donor,  becomes  the  law  of  the  donation  I 
These  questions  are  of  serious  moment  to  society,  and  de- 
serve to   be  well  considered. 

Doctor  Wheelock, as  the  keeper  of  his  charity  school,  in- 
structing the  Indians  in  the  art  of  reading,   and  in  our  holy 
religion  ;  sustaining  them  at  his  own  expense,  and  on  the  vol 
untary  contributions  of  the   charitable,    could    scarcely  be 
considered,  as  a  publick  officer,  exercising  any   portion  ot 


1>  1  Plack.  Comm.  481. 
2)  1  Black.  Coram.  471. 


SUPREME  COURT,  UNITED  STATES.  315 

those  duties,  which  belong  to  government;  nor  could  the 
legislature  have  supposed  that  his  private  funds,  or  those 
given  by  others,  were  subject  to  legislative  management,  be- 
cause they  were  applied  to  the  purposes  of  education.  When, 
afterwards,  his  school  was  enlarged,  and  the  liberal  contribu- 
tions made  in  England  and  in  America  enabled  him  to  extend 
his  cares  to  the  education  of  the  youth  of  his  own  country, 
no  change  was  wrought  in  his  own  character,  or  in  the  na- 
ture of  his  duties.  Had  he  employed  assistant  tutors  with 
the  funds  contributed  by  others,  or  had  the  trustees  in  Eng- 
land established  a  school  with  Dr.  Wheelock  at  its  head, 
and  paid  salaries  to  him  and  his  assistants,  they  would  still 
have  been  private  tutors  ;  and  the  fact,  that  they  were  em- 
ployed in  the  education  of  youth,  could  not  have  convert- 
ed them  into  publick  officers,  concerned  in  the  administration 
of  publick  duties,  or  have  given  the  legislature  a  right  to  in- 
terfere in  the  management  of  the  fund.  The  trustees,  in 
whose  care  that  fund  was  placed  by  the  contributors,  would 
have  been  permitted  to  execute  their  trust  uncontrouled  by 
legislative  authority. 

Whence,  then,  can  be  derived  the  idea,  that  Dartmouth 
College  has  become  a  publick  institution,  and  its  trustees 
publick  officers,  exercising  powers  conferred  by  the  publick 
for  publick  objects  ?  Not  from  the  source,  whence  its 
funds  were  drawn,  for  its  foundation  is  purely  private  and 
eleemosynary.  Not  from  the  application  of  those  funds,  for 
money  may  be  given  for  education,  and  the  persons  receiv- 
ing it  do  not  l:y  being  employed  in  the  education  of  youth, 
become  members  of  thr  civil  government.  Is  it  from  the 
act  of  incorporation  ?  Let  this  subject  be  considered. 

A  corporation  is  an  artificial  being,  invisible,  intangible, 
and  existing  only  in  contemplation  of  law.  Being  the  mere 
creature  of  law,  it  possesses  only  those  properties,  which 
the  charter  of  i(s  creation  confers  upon  if,  either  expressly, 
or  as  incidental  to  its  very  existence.     These    are  such  t\v 


316  DARTMOUTH  COLLEGE  VS.  WOODWARD 

are  supposed  best  calculated  to  effect  the  object,  for  which 
it  was  created.  Among  the  most  important  are  immortality, 
and,  if  the  expression  may  be  allowed,  individuality  ;  prop- 
erties, by  which  a  perpetual  succession  of  many  persons  are 
considered  as  the  same,  and  may  act  as  a  single  individual. 
They  enable  a  corporation  to  manage  its  own  affairs,  and  to 
hold  property  without  the  perplexing  intricacies,  the  hazard- 
ous and  endless  necessity  of  perpetual  conveyances  for  the  pur- 
pose of  transmitting  it  from  band  to  hand.  It  is  chiefly  for  the 
purpose  of  clothing  bodies  of  men,  in  succession,  wilh  these 
qualities  and  capacities,  that  corporations  were  invented,  and 
are  in  use.  By  these  means,  a  perpetual  succession  of  individ- 
uals are  capable  of  acting  for  the  promotion  of  the  particular 
object,  like  one  immortal  being.  But  this  being  does  not  share 
in  the  civil  government  of  the  country,  unless  that  be  for 
the  purpose,  for  which  it  was  created.  Its  immortality  no 
more  confers  on  it  political  power,  or  a  political  character 
than  immortality  would  confer  such  power  or  character  on 
anatural  person.  It  is  no  more  a  state  instrument,  than  a 
natural  person  exercising  the  same  powers  would  be.  If 
then  a  natural  person  employed  by  individuals  in  the  educa- 
tion of  youth,  or  for  the  government  of  a  seminary,  in  which 
youth  is  educated,  would  not  become  a  publick  officer,  or  be 
considered  as  a  member  of  the  civil  government,  how  is  it, 
that  this  artificial  being,  created  by  law,  for  the  purpose  of 
being  employed  by  the  same  individuals  for  the  same  pur- 
poses, should  become  a  part  of  the  civil  government  of  the 
country?  Is  it  because  its  existence,  its  capacities,  its  pow- 
ers are  given  by  law  ?  Because  the  government  has  given 
it  the  power  to  take  and  to  hold  property  in  a  particular 
form,  and  for  particular  purposes,  has  the  government  a 
consequent  right  substantially  to  change  that  form,  or  to  va- 
ry the  purposes,  to  which  the  property  is  to  be  applied  ? 
This  principle  has  never  been  asserted,  or  recognized,  and 


SUPREME  COURT,  UNITED  STATES.  31 7 

is  supported  by  no  authority.     Can  it  derive  aid  from  rea- 
son ? 

The  objects  for  which  a  corporation  is  created,  are  uni- 
versally such,  as  the  government  wishes  to  promote.  They 
are  deemed  beneficial  to  the  country  ;  and  this  benefit  con- 
stitutes the  consideration,  and  in  most  cases,  the  sole  consid- 
eration of  the  grant.  In  most  eleemosynary  institutions,  the 
object  would  be  difficult,  perhaps  unattainable,  without  the 
aid  of  a  charter  of  incorporation.  Charitable,  or  publick 
spirited  individuals,  desirous  of  making  permanent  appro- 
priations for  charitable  or  other  useful  purposes,  find  it  im- 
possible to  effect  their  design  securely,  and  certainly,  with- 
out an  incorporating  act.  They  apply  to  the  government, 
state  their  beneficent  object  and  offer  to  advance  the  money 
necessary  for  its  accomplishment,  provided  the  government 
will  confer  on  the  instrument,  which  is  to  execute  their  de- 
signs, the  capacity  to  execute  them.  The  proposition  is 
considered  and  approved.  The  benefit  to  the  publick  is 
considered  as  an  ample  compensation  for  the  faculty  it 
confers,  and  the  corporation  is  created.  If  the  advantages 
to  the  publick  constitute  a  full  compensation  for  the  faculty 
it  gives,  there  can  be  no  reason  fer  exacting  a  further  com- 
pensation by  claiming  a  right  to  exercise  over  this  artificial 
being,  a  power  which  changes  its  nature,  and  touches  the 
fund,  for  the  security  and  application  of  which  it  was  creat- 
ed. There  can  be  no  reason  for  implying  in  a  charter,  given 
for  a  valuable  consideration,  a  power,  which  is  not  only  not 
expressed,  but  is  in  direct  contradiction  to  its  express  stip- 
ulations. 

From  the  fact  then,  that  a  charter  of  incorporation  has- 
been  granted,  nothing  can  be  inferred,  which  changes  the 
character  of  the  institution  or  transfers  to  the  government 
any  new  power  over  it.  The  character  of  civil  institutions 
does  not  grow  out  of  their  incorporation,  but  out  of  the  man- 
ner in  which    they  are  formed,   and  the    objects   for  which 


318  DARTMOUTH  COLLEGE  VS.  WOODWARD. 

they  are  created.  The  right  to  change  them,  is  not  found- 
ed  on  their  being  incorporated,  but  on  their  being  the  instru- 
ments of  government,  created  for  its  purposes.  The  same 
institutions,  created  for  the  same  objects,  though  not  incor- 
porated, would  be  publick  institutions  and,  of  course,  be  con- 
troulable  by  the  legislature.  The  incorporating  act,  neither 
gives,  nor  prevents,  this  controul.  Neither,  in  reason  can 
the  incorporating  act  change  the  character  of  a  private 
eleemosynary  institution. 

We  are  next  led  to  the  enquiry,  for  whose  benefit  the 
property  given  to  Dartmouth  College  was  secured  ?  The 
counsel  for  the  defendant  have  insisted,  that  the  beneficial 
interest  is  in  the  people  of  New-Hampshire.  The  charter, 
after  reciting  the  preliminary  measures,  which  had  been  ta- 
ken, and  the  application  for  an  act  of  incorporation,  proceeds 
thus. — "  Know  ye  therefore,  that  we,  considering  the  prem- 
"  ises,  and  being  willing  to  encourage  the  laudable  and 
"  charitable  design  of  spreading  christian  knowledge,  among 
"  the  savages  of  our  American  wilderness,  and  also  that  the 
"  best  means  of  education  be  established,  in  our  province 
"  of  New-Hampshire,  for  the  benefit  of  said  province,  do 
"  of  our  special  grace, &c."  Do  these  expressions  bestow  on 
New-Hampshire  any  exclusive  right  to  the  property  of 
the  college,  any  exclusive  interest  in  the  labours  of  the  pro- 
fessors ?  Or  do  they  merely  indicate  a  willingness,  that 
New-Hampshire  should  enjoy  those  advantage^,  which  re- 
sult to  all  from  the  establishment  of  a  seminary  of  learning 
in  the  neighbourhood  ?  On  this  point  we  think  it  impossible 
to  entertain  a  serious  doubt.  The  words  themselves,  unex- 
plained by  the  context,  indicate,  that  the  "  benefit  intended 
for  the  province"  is  that,  which  is  derived  from  "  establish- 
ing the  best  means  of  education  therein  ;"  that  is,  from  es- 
tablishing in  the  province  Dartmouth  College,  as  constituted 
by  the  charter.  But,  if  these  words  considered  alone,  could 
admit  of  doubt,  that  doubt  is  completely  removed  by  an  in- 
rnecfion  of  the  entire  instrument. 


SUPREME  COURT,  UNITED  STATES.  31  fJ 

The  particular  interests  of  New-Hampshire  never  enter- 
ed into  the  mind  of  the  donors,  never  constituted  a  motive 
for  their  donation.  The  propagation  of  the  christian  relig- 
ion among  the  savages,  and  the  dissemination  of  useful 
knowledge  among  the  youth  of  the  country,  were  the  avow- 
ed and  the  sole  objects  of  their  contributions,  in  these 
New-Hampshire  would  participate  ;  but  nothing  particular 
or  exclusive,  was  intended  for  her.  Even  the  site  of  the 
college  was  selected,  not  for  the  sake  of  New-Hampshire, 
but  because  it  was  "  most  subservient  to  the  great  ends  in 
view,"  and  because  liberal  donations  of  land  were  offered 
by  the  proprietors,  on  condition,  that  the  institution  should 
be  there  established.  The  real  advantages  from  the  loca- 
tion of  the  college,  are,  perhaps,  not  less  considerable  to 
those  on  the  west,  than  to  those  on  the  east  side  of  Connec- 
ticut river.  The  clause  which  constitutes  the  incorporation, 
and  expresses  the  objects,  for  which  it  was  made,  declares 
those  objects  to  be  the  instruction  of  the  Indians,  "  and  also 
of  English  youth,  and  any  others."  So  that  the  objects  of 
the  contributors,  and  the  incorporating  act  were  the  same  ; 
the  promotion  of  Christianity,  and  of  education  generall\\ 
not  the  interests  of  New-Hampshire  particularly. 

From  this  review  of  the  charter,  it  appears  that  Dart- 
mouth College  is  an  eleemosynary  institution,  incorporated 
for  the  purpose  of  perpetuating  the  application  of  the  bounty 
of  the  donors  to  the  specified  objects  of  that  bounty;  that 
its  trustees  or  governours,  were  originally  named  by  the 
founder,  and  invested  with  the  power  of  perpetuating  them- 
selves ;  that  they  are  not  publick  officers,  nor  is  it  a  civil  in- 
stitution, participating  in  the  administration  of  government  ; 
but  a  charity  school,  or  a  seminary  of  education,  incorporat- 
ed for  the  preservation  of  its  property  and  the  perpetual 
application  of  that  property  to  the  objects  of  its  creation. 

Yet  a  question  remains  to  be  considered,  of  more  real  dif- 
ficulty on  which  more  doubt  has  been   entertained,    than  on 


320  DAUTMOUTH  COLLEGE  VS.  WOODWARD. 

all  that  have  been  discussed.  The  founders  of  the  college^ 
at  least  those,  whose  contributions  were  in  money,  have  part- 
ed with  the  property  bestowed  upon  it,  and  their  representa- 
tives have  no  interest  in  that  property.  The  donors  of 
land  are  equally  without  interest,  so  long  as  the  corporation 
shall  exist.  Could  they  be  found,  they  are  unaffected  by 
any  alteration  in  its  constitution,  and  probably  regardless  of 
its  form,  or  even  of  its  existence.  The  students  are  fluctuat- 
ing and  no  individual  among  our  youth  has  a  vested  interest 
in  the  institution,  which  can  be  asserted  in  a  court  of  justice. 
Neither  the  founders  of  the  college,  nor  the  youth,  for  whose 
benefit  it  was  founded,  complain  of  the  alteration  made  in  its 
charter,  or  think  themselves  injured  by  it.  The  trustees 
alone  complain,  and  the  trustees  have  no  beneficial  interest 
to  be  protected.  Can  this  be  such  a  contract,  as  the  con- 
stitution intended  to  withdraw  from  the  power  of  state  legis- 
lation ?  Contracts,  the  parties  to  which  have  a  vested  bene- 
ficial interest,  and  those  only,  it  has  been  said,  are  the  ob- 
jects about  which  the  constitution  is  solicitous,  and  to  which 
its  protection  is  extended. 

The  court  has  bestowed  on  this  argument  the  most  de- 
liberate consideration,  and  the  result  will  be  stated.  Dr. 
Wheelock  acting  for  himself,  and  for  those,  who  at  his  solic- 
itation, had  made  contributions  to  his  school,  applied  forthii 
charter,  as  the  instrument  which  should  enable  him,andthem 
to  perpetuate  their  beneficent  intention.  It  was  granted. — 
An  artificial,  immortal  being,  was  created  by  the  crown, 
capable  of  receiving  and  distributing  forever,  according  to 
the  will  of  the  donors,  the  donations,  which  should  be  made 
to  it.  On  this  being,  the  contributions,  which  had  been  col- 
lected, were  immediately  bestowed.  These  gifts  were  made 
not  indeed  to  make  a  profit  for  the  donors  or  their  posterity, 
but  for  something  in  their  opinion  of  inestimable  value  ;  for 
something  which  they  deemed  a  full  equivalent  for  the  mon- 
ey, with  which  it  was   purchased.     The  consideration   for 


SUPREME  COURT,  UNITED  STATES.        321 

which  they  stipulated,  is  the  perpetual  application  of  the 
fund  to  its  object,  in  the  mode  prescribed  by  themselves. 
Their  descendants  may  take  no  interest  in  the  preservation 
of  this  consideration.  But  in  this  respect  their  descendants 
are  not  their  representatives.  They  are  represented  by 
the  corporation.  The  corporation  is  the  assignee  of  their 
rights,  stands  in  their  place  and  distributes  their  bounty,  as 
they  would  themselves  have  distributed  it,  had  they  been 
immortal.  So  with  respect  to  the  students,  who  are  to  de- 
rive learning  from  this  source.  The  corporation  is  a  trus- 
tee for  them  also.  Their  potential  rights,  which  taken  dis- 
tributively,  are  imperceptible,  amount  collectively  to  a  most 
important  interest.  These  are  in  the  aggregate,  to  be  ex- 
ercised, asserted  and  protected,  by  the  corporation.  They 
were  as  completely  out  of  the  donors,  at  the  instant  of  their 
being  vested  in  the  corporation,  and  as  incapable  of  being 
asserted  by  the  students  as  at  present. 

According  to  the  theory  of  the  British  constitution,  their 
parliament  is  omnipotent.  To  annul  corporate  rights  might 
give  a  shock  lo  publick  opinion,  which  that  government  has 
chosen  to  avoid  ;  but  its  power  is  not  questioned.  Had  par- 
liament immediately  after  the  emanation  of  this  charter,  and 
the  execution  of  those  conveyances,  which  followed  it,  an- 
nulled the  instrument,  so  that  the  living  donors  would  have 
witnessed  the  disappointment  of  their  hopes,  the  perfidy  of 
the  transaction  would  have  been  universally  acknowledged. 
Yet  then  as  now,  the  donors  would  have  had  no  interest  in 
the  property  ;  then,  as  now,  those,  who  might  be  students, 
would  have  had  no  rights  to  be  violated  ;  then  as  now,  it 
might  be  said,  that  the  trustees,  in  whom  the  righls  of  all 
were  combined,  possessed  no  private,  individual,  beneficial 
interest  in  the  property  confided  to  their  protection.  Yet 
the  contract  would  at  that  time,  have  been  deemed  sacred 
by  all.  What  has  since  occurred  to  strip  it  of  its  inviola- 
42 


°<122  DARTMOUTH  COLLEGE  VS.  WOODWAtin. 

bilify  ?  Circumstances  have  not  changed  it.     In  reason,  in 
justice,  and  in  law,  it  is  now  what  it  Was  in  176U. 

This  is  plainly  a  contract  to  which  the  donors,  the  trus- 
tees and  the  crown  (to  ivhose  rights  and  obligations  New- 
Hampshire  succeeds)  were  the  original  parlies.  It  is  a 
contract  made  on  a  valuable  consideration.  It  is  a  con- 
tract for  the  security  and  disposition  of  properly.  It  is 
a  contract,  on  the  faith  of  which,  real  and  personal  es- 
tate has  been  conveyed  to  the  corporation.  It  is  then  a 
contract  within  the  letter  of  the  constitution  ;  and  within  its 
spirit  also,  unless  the  fact,  that  the  property  is  invested  by 
the  donors  in  trusteed  for  the  promotion  of  religion  and  ed- 
ucation, for  the  benefit  of  persons,  who  are  perpetually 
changing,  though  the  objects  remain  the  same,  shall  create  a 
particular  exception,  taking  this  case  out  of  the  prohibition 
contained  in  the  constitution. 

It  is  more  than  possible,  that  the  preservation  of  rights  of 
this  description  was  not  particularly  in  the  view  of  the  fram- 
ers  of  the  constitution,  when  the  clause  under  consideration 
was  introduced  into  that  instrument.  It  is  probable,  that  in- 
terferences of  more  frequent  recurrence,  to  which  the  tempta- 
tion was  stronger,  and  of  which  the  mischief  was-  more  ex- 
tensive, constituted  the  great  motive  for  imposing  this  re- 
striction on  the  state  legislatures.  But  although  a  particu- 
lar, and  a  rare  case  may  not,  in  itself,  be  of  sufficient  magni- 
tude to  induce  a  rule,  yet  it  must  be  governed  by  the  rule, 
when  established,  unless  some  plain  and  strong  reason  for  ex- 
cluding it  can  be  given.  It  is  not  enough  to  say,  that  this; 
particular  case  was  not  in  the  mind  of  the  convention,  when 
the  article  was  framed,  nor  of  the  American  people,  when  it 
was  adopted.  It  is  necessary  to  go  farther,  and  to  say  that, 
had  this  particular  case  been  suggested,  the  language  would 
have  been  so  varied,  as  to  exclude  it,  or  it  would  have  been 
made  a  special  exception.  The  case  being  within  the 
words  of  the  rule,  must  be  within  its  operation  likewise,  un 


SUFHEMS  COURT,  UNITED  STATES.  323 

less  there  be  something  in  the  literal  construction  so  obvi- 
ously absurd,  or  mischievous,  or  repugnant  to  the  general 
spirit  of  the  instrument,  as  to  justify  those,  who  expound 
the  constitution  in  making  it  an  exception. 

On  what  safe  and  intelligible  ground  can  this  exceptionstand. 
There  is  no  expression  in  the  constitution,  no  sentiment  de- 
livered by  its  contemporaneous  expounders,  which  would 
justify  us  in  making  it.  In  the  absense  of  all  authority  of 
this  kind,  is  there  in  the  nature  and  reason  of  the  case  itself 
that,  which  would  sustain  a  construction  of  the  constitution, 
not  warranted  by  its  words?  Are  contracts  of  this  descrip- 
tion of  a  character  to  excite  so  little  interest,  that  we  must  ex- 
clude  them  from  the  provisions  of  the  constitution,  as  being 
it*;  worthy  of  the  attention  of  those,  wh©  -framed  the  instru- 
ment? Or  does  publick  policy  so  imperiously  demand  their 
remaining  exposed  to  legislative  alteration,  as  to  compel  us, 
or  rather  permit  us  to  say,  that  these  words,  which  were  in- 
troduced to  give  stability  to  contracts,  and  which  in  their 
pJain  import  comprehend  this,  must  yet  be  so  construed,  ae 
to  exclude  it  ? 

Almost  all  eleemosynary  corporations,  those  which  are 
created  for  the  promotion  of  religion,  of  charity  or  of  educa- 
tion, are  of  the  same  character.  The  law  of  this  case  is  the 
U iv  of  all.  In  every  literary  or  charitable  institution,  un- 
less the  objects  of  the  bounty  be  themselves  incorporated, 
the  whole  legal  interest  is  in  trustees,  and  can  be  asserted 
o::!y  by  them.  The  donors,  or  claimants  of  the  bounty,  if 
!h<  y  can  appear  in  court  at  all,  can  appear  only  to  com- 
plain  of  the  trustees.  In  all  other  situation?,  they  arc  ident- 
ified with,  and  personated  by  the  trustees  •  and  their  rights, 
.ire  to  be  defended  and  maintained  by  them.  Religion,  char 
ify,  and  education,  are  in  the  law  of  England  legatees, 
or  donees,  capable  of  receiving  bequests,  or  donations 
in  this  form.  They  appear  In  court,  and  claim  or  de- 
fend   by  tin-    corporation.     Are    I  hey    of  so  little    estima- 


324      DARTMOUTH  COLLEGE  VS.  WOODWARD. 

tion  in  the  United  States,  that  contracts  for  their  benefit 
must  be  excluded  from  the  protection  of  words,  which  in 
their  natural  import  include  them  ?  Or  do  such  contracts  so 
necessarily  require  new  modelling  by  the  authority  of  the 
legislature,  that  the  ordinary  rules  of  construction  must  be 
disregarded  in  order  to  leave  them  exposed  to  legislative  al- 
teration ? 

AH  feel,  that  these  objects  are  not  deemed  unimportant  in 
the  United  States.  The  interest,  which  this  case  has  ex- 
cited proves,  that  they  are  not.  The  framers  of  the  constitu- 
tion did  not  deem  them  unworthy  of  its  care  and  protection. 
They  have,  though  in  a  different  mode,  manifested  their  re- 
spect for  science,  by  reserving  to  the  government  of  the 
Union  the  power,  "to  promote  the  progress  of  science  and 
"  useful  arts,  by  securing  for  limited  times  to  authors  and 
"  inventors,  the  exclusive  right  to  their  respective  writings 
"and  dicoveries."  They  have  so  far  withdrawn  science,  and 
the  useful  art3,  from  the  action  of  the  state  governments. — 
Why  then  should  they  be  supposed  so  regardless  of  con- 
tracts made  for  the  advancement  of  literature,  as  to  intend 
to  exclude  them  from  provisions,  made  for  the  security  of 
ordinary  contracts  between  man  and  man  ?  No  reason  for 
making  this  supposition  is  perceived. 

If  the  insignificance  of  the  object  does  not  require,  that 
we  should  exclude  contracts  respecting  it  from  the  protec- 
tion of  the  constitution  ;  neither,  as  we  conceive,  is  the 
policy  of  leaving  them  subject  to  legislative  alteration  so 
apparent,  as  to  require  a  forced  construction  of  that  instru 
ment  in  order  to  effect  it.  These  eleemosynary  institutions 
do  not  fill  the  place,  which  would  otherwise  be  occupied  by 
government,  but  that  which  would  otherwise  remain  vacant. 
They  are  complete  acquisitions  to  literature.  They  are 
donations  to  education  ;  donations,  which  any  government 
must  be  disposed  rather  to  encourage  than  to  discounte- 
nance.    It  requires  no  very  critical  examination  of  the  hu- 


SUPREME  COURT,  UNITED  STATES.  32a 

man  mind  to  enable  us  to  determine,  that  one  great  induce- 
ment to  these  gifts  is  the  conviction  felt  by  the  giver,  that 
the  disposition  he  makes  of  them  is  immutable.  It  is  prob- 
able, that  no  man  ever  was,  and  that  no  man  ever  will  be,  the 
founder  of  a  college,  believing  at  the  time,  that  an  act  of  incor- 
poration constitutes  no  security  for  the  institution  ;  believing, 
that  it  is  immediately  to  be  deemed  a  publick  institution, 
whose  funds  are  to  be  governed,  and  applied,  not  by  the  will 
of  the  donor,  but  by  the  will  of  the  legislature.  All  such 
gifts  are  made  in  the  pleasing,  perhaps,  delusive,  hope,  that 
the  charity  will  flow  forever  in  the  channel,  which  the  giv- 
ers have  marked  out  for  it.  If  every  man  finds  in  his  own 
bosom  strong  evidence  of  the  universality  of  this  sentiment, 
there  can  be  but  little  reason  to  imagine,  that  the  framers 
of  our  constitution  were  strangers  to  it,  and  that,  feeling  the 
necessity  and  policy  of  giving  permanence  and  security  to 
contracts,  of  withdrawing  them  from  the  influence  of  legisla- 
tive bodies,  whose  fluctuating  policy,  and  repeated  interfer- 
ences produced  the  most  perplexing  and  injifrious  embarrass- 
ments, they  still  deemed  it  necessary  to  leave  these  con- 
tracts subject  to  those  interferences.  The  motives  for  such 
an  exception  must  be  very  powerful  to  justify  the  construc- 
tion, which  makes  if. 

The  motives  suggested  at  the  bar  grow  out  of  the  original 
appointment  of  the  trustees,  which  is  supposed  to  have  been 
in  a  spirit  hostile  to  the  genius  of  our  government,  and  the 
presumption,  that  if  allowed  to  continue  themselves,  they 
now  are,  and  must  remain  forever,  what  they  originally  were, 
ii ence  is  inferred  the  necessity  of  applying  to  (his  corpora 
lion,  and  to  other  similar  corporations,  the  correcting,  and 
improving  hand  of  of  the  legislature. 

It  has  been  urged  repeatedly,  and  certainly  with  a  dcgiec 
of  earnestness,  which  attracted  attention,  that  the  trustees 
deriving  their  power  from  a  regal  source,  must,  nt  cessarilv 
partake  of  the  spirit  of  their  origin  ;  and  that  their  firs!  pn'n- 


326  DARTMOUTH  COLLEGE  VS.  WOODWAKB. 

ciples,  unimproved  by  (hat  resplendent  light,  which  has  been 
shed  around  them,  must  continue  to  govern  the  college,  and 
to  guide  the  students.  Before  we  enquire  into  the  influence 
which  this  argument  ought  to  have  on  the  constitutional 
question,  it  may  not  be  amiss  to  examine  the  fact,  on  which 
it  rests.  The  first  trustees  were  undoubtedly  named  in  the 
charter  by  the  crown  ;  but  at  whose  suggestion  were  they 
named  ?  By  whom  were  they  selected  ?  The  charier  in- 
forms us.  Dr.  Wheelock  had  represented,  "  that  for  many 
"  weighty  reasons  it  would  be  expedient,  that  the  gentle- 
"  men  whom  he  had  already  nominated  in  his  last  will  to  be 
"  trustees  in  America,  should  be  of  the  corporation  now  pro- 
"  posed."  When  afterwards,  the  trustees  are  named  in  the 
charter,  can  it  be  doubted,  that  the  persons  mentioned  by 
Dr.  Wheelock  in  his  will  were  appointed  ?  Some  were 
probably  added  by  the  crown  with  the  approbation  of  Dr. 
Wheelock.  Among  these  is  the  Dr.  himself.  If  any  oth- 
ers were  appointed  at  the  instance  of  the  crown,  they  are 
the  governour,  three  members  of  the  council,  and  the  speak- 
er cf  the  house  of  representatives  of  the  colony  of  New- 
Hampshire.  The  stations  filled  by  these  persons  ought  to 
rescue  them  from  any  other  imputation,  than  too  great  a  de- 
pendence on  the  crown.  If  in  the  revolution,  that  followed, 
they  acted  under  the  influence  of  this  sentiment,  they  must 
have  ceased  to  be  trustees  ;  if  they  took  part  with  their 
countrymen,  the  imputation,  which  suspicion  might  excite, 
would  no  longer  attach  to  them.  The  original  trustees  then, 
or  most  of  them,  were  named  by  Dr.  Wheelock,  and  those, 
who  were  added  to  his  nomination,  most  probably  with  his 
approbation,  were  among  the  most  eminent,  and  respectable 
individuals  in  New-Hampshire. 

The  only  evidence,  which  we  possess  of  the  character  of 
Dr.  Wheelock,  is  furnished  by  this  charter.  The  judicious 
means  employed  for  the  accomplishment  of  bis  object,  and 
the  success,  which  attended  his  endeavours,,  would  lead  to 


SUPREME  COURT,  UNITED  STATES.  32  > 

the  opinion,  that  he  united  a  sound  understanding  to  that 
humanity  and  benevolence,  which  suggested  his  undertak- 
ing. It  surely  cannot  be  assumed,  that  his  trustees  were 
selected  without  judgment.  With  as  little  probability  can 
it  be  assumed,  that  while  the  light  of  science  and  of  liberal 
principles  pervades  the  whole  community,  these  originally 
benighted  trustees  remain  in  utter  darkness,  incapable  of 
participating  in  the  general  improvement ;  that  while  the 
human  race  is  rapidly  advancing,  they  are  stationary.  Rea- 
soning a  priori,  we  should  believe,  that  learned,  and  intelli- 
gent men  selected  by  its  patrons  for  the  government  of  a 
literary  institution,  would  select  learned  and  intelligent  men 
for  their  successors  ;  men  as  well  fitted  for  the  government 
of  a  college,  as  those,  who  might  be  chosen  by  other  means. 
Should  this  reasoning  ever  prove  erroneous  in  a  particular 
case,  publick  opinion,  as  has  been  stated  at  the  bar,  would 
correct  the  institution.  The  mere  possibility  of  the  contra- 
ry would  not  justify  a  construction  of  the  constitution, which 
should  exclude  these  contracts  from  the  protection  of  a 
provision,  whose  terms  comprehend  them. 

The  opinion  of  the  court  after  mature  deliberation,  is, 
that  this  is  a  contract,  the  obligation  of  which  cannot  be  im- 
paired without  violating  the  constitution  of  the  United 
States.  This  opinion  appears  to  us  to  be  equally  support- 
ed by  reason,  and  by  the  former  decisions  of  this  court. 

2d.  We  next  proceed  to  the  enquiry — whether  its  obli- 
gation has  been  impaired  by  those  acts  of  the  legislature  of 
New-Hampshire,  to  which  the  special  verdict  refers. 

From  the  review  of  this  charter,  which  has  been  taken,  it 
appears,  that  the  whole  power  of  governing  the  college,  of 
appoinling  and  removing  tutors,  of  fixing  their  salaries,  of  di- 
recting the  course  of  study  to  be  pursued  by  the  students, 
and  of  filling  up  vacancies  created  in  their  own  body,  was 
vested  in  the  trustees.  Oil  the  part  of  the  crown  it  was 
expressly  stipulated,  that   this  corporation,  thus  constituted 


328  DARTMOUTH  COLLEGE  VS.  WOODWARD. 

should  continue  forever ;  and  that  the  number  of  trustees 
should  forever  consist  of  twelve,  and  no  more.  By  this 
contract  the  crown  was  bound,  and  could  have  made  no  vio- 
lent alteration  in  its  essential  terms,  without  impairing  its 
obligation. 

By  the  revolution  the  duties,  as  well  as  the  powers, 
of  government  devolved  on  the  people  of  New-Hamp- 
shire. It  is  admitted,  that  among  the  latter,  was  compre- 
hended the  transcendent  power  of  parliament,  as  well  as  that 
of  the  executive  department.  It  is  too  clear  to  require  the 
support  of  argument,  that  all  contracts  and  rights  respecting 
property  remained  unchanged  by  the  revolution.  The  ob- 
ligations then,  which  were  created  by  the  charter  to  Dart- 
mouth College,  were  the  same  in  the  new,  that  they  had 
been  in  the  old  government.  The  power  of  the  government 
was  also  the  same.  A  repeal  of  this  charter  at  any  time 
prior  to  the  adoption  of  the  present  constitution  of  the  Uni- 
ted States,  would  have  been  an  extraordinary  and  unprece- 
dented act  of  power,  but  one,  which  could  have  been  con- 
tested only  by  the  restrictions  upon  the  legislature,  to  be 
found  in  the  constitution  of  the  state.  But  the  constitution 
of  the  United  States  has  imposed  this  additional  limitation, 
that  the  legislature  of  a  state,  shall  pass  no  act  "  impairing  the 
obligation  of  contracts." 

It  has  been  already  stated,  that  the  act  "  to  amend  the 
"  charter,  and  enlarge  and  improve  the  corporation  of  Dart- 
"  mouth  College,"  increases  the  number  of  trustees  to 
twenty-one,  gives  the  appointment  of  the  additional  num- 
bers to  the  executive  of  the  state,  and  creates  a  board  of 
overseers,  to  consist  of  twenty-five  persons,  of  whom  twen- 
ty-one are  also  appointed  by  the  executive  of  New-Hamp- 
ehiie,  who  have  power  to  inspect  and  controul  the  most  im- 
portant acts  of  the  trustees. 

On  the  effect  of  this  law,  two  opinions  cannot  be  enter- 
tained.     Between   acting  directly,  and  acting  through  the 


SUPREME  COURT,  UNITED  STATES.         329 

agency  of  trustees  and  overseers,  no  essential  difference  is 
perceived.       The  whole  power  of  governing  the  college  is 
transferred  from  trustees  appointed  according  to  the  will  of 
the  founder,  expressed  in   the  charter,  to   the  executive  of 
New-Hampshire.     The  management  and  application  of  the 
funds  of  this  eleemosynary  institution,  which  are  placed  by 
the  donors,  in  the  hands  of  trustees  named  in  the   charter, 
and  empowered  to  perpetuate  themselves,   are   placed    by 
this  act  under  the  controul  of  the  government   of  the   state. 
The  will  of  the  state  is  substituted  for    the   will   of  the  do- 
nors, in  every  essential  operation  of  the    college.      This  is 
not  an  immaterial  change. — The  founders  of  the  college  con- 
tracted not  merely    for  the    perpetual   application   of    the 
funds  which  they  gave  to  the  objects,  for  which  those  funds 
were  given  ;  they  contracted  also  to  secure  that  application 
by  the  constitution  of  the  corporation.    They  contracted  for 
a  system,  which  should,  as  far  as  human  foresight  can  pro- 
vide, retain  forever  the  government    of  the  literary  institu- 
tion, they  had  formed,  in  the  hands  of  persons  approved  by 
themselves.     This  system  is    totally  changed.     The  char- 
ter of  1769  exists  no  longer-     It  is  reorganized  ;    and  reor- 
ganized in  such  a  manner,  as  to    convert  a   literary   institu- 
tion, moulded  according  to  the  will  of  its  founders,  and  pla- 
ced under  the  controul  of  private  literary    men,  into  a  ma- 
chine entirely  subservient  to  the  will  of  government.     This 
may  be  for  the  advantage  of  this   college   in  particular,  and 
may  be  for  the  advantage  of  literature  in  general ;  but    it  is 
not  according  to  the  will  of  the  donors,  and  is  subversive  of 
that    contract    on    the   faith    of    which  their  property   was 
given. 

In  the  view  which  has  been  taken  of  this  interesting  case, 
the  court  has  confined  itself  to  the  rights  possessed  by  the 
trustees,  as  the  assignees  and  representatives  of  the  donors 
and  founders,  for  the  benefit  of  religion  and  literature.  Yet 
it  ia  not  clear,  that  the  trustees   ought  to    be   considered  as 

r.i 


330  DARTMOUTH  COLLEGE  VS.  WOODWARD. 

destitute  of  such  beneficial  interest  in  themselves,  as  the 
law  may  respect.  In  addition  to  their  being  the  legal  own- 
ers of  the  properly  and  to  their  having  a  freehold  right  in 
the  powers  confided  to  them,  the  charter  itself  countenances 
the  idea,  that  trustees  may  also  be  tutors  with  salaries.-^— 
The  first  president  was  one  of  the  original  trustees;  and 
the  charter  provides  that  in  case  of  vacancy,  in  that  office 
"  the  senior  professor  or  tutor,  being  one  of  the  trustees, 
shall  exercise  the  office  of  president,  until  the  trustees  shall 
make  choice  of,  and  appoint  a  president."  According  to 
the  tenor  of  the  charter,  then,  the  trustees  might  without 
impropriety  appoint  a  president  and  other  professors  from 
their  own  body.  This  is  a  power  not  entirely  unconnected 
with  an  interest.  If  the  proposition  of  the  counsel  for  the 
defendant  were  sustained,  if  it  were  admitted,  that  those 
contracts  only  are  protected  by  the  constitution,  a  benefi- 
cial interest  in  which  is  vested  in  the  party,  who  appears  in 
court  to  assert  that  interest ;  yet  it  is  by  no  means  clear, 
that  the  trustees  of  Dartmouth  College,  have  no  beneficial 
interest  in  themselves. 

But  the  court  has  deemed  it  unnecessary  to  investigate 
this  particular  point,  being  of  opinion  on  general  principles 
that  in  these  private  eleemosynary  institutions,  the  body  cor- 
porate, as  possessing  the  whole  legal  and  equitable  interest, 
and  completely  representing  the  donors,  for  the  purpose  of 
executing  the  trust,  has  rights  which  are  protected  by  the 
constitution. 

It  results  from  this  opinion,  that  the  acts  of  the  legislature 
of  New-Hampshire,  which  are  stated  in  the  special  verdict 
found  in  this  cause,  are  repugnant  to  the  constitution  of  the 
United  States  ;  and  that  the  judgment  on  this  special  ver- 
dict ought  to  have  been  for  the  plaintiffs.  The  judgment 
of  the  state  court  must  therefore  be  reversed. 


SUPREME  COURT,  UNITED  STATES.  331 

Mr.  Justick  Washington, — This  cause  turns  upon  the 
validity  of  certain  laws  of  the  state  of  New-Hampshire,  which 
have  been  stated  in  the  case,  and  which,  it  is  contend- 
ed by  the  counsel  for  the  plaintiffs  in  error,  are  void,  being 
repugnant  to  the  constitution  of  that  state,  and  also  to  the 
•constitution  of  the  United  States.  Whether  the  first  objec- 
tion to  these  laws,  be  well  founded,  or  not,  is  a  question,  with 
which  this  court,  in  this  case,has  nothing  to  do :  because  it  has 
no  jurisdiction  as  an  appellate  court,  over  the  decisions  of  a 
state  court,except  in  cases, where  is  drawn  in  question  the  val- 
idity of  a  treaty, or  statute  of,  or  an  authority  exercised  under 
the  United  States,and  the  decision  is  against  their  validity  ;  or 
■where  is  drawn  in  question  the  validity  of  a  statute  of,or  an  au- 
thority exercised  under, any  state  on  the  ground  of  their  being 
repugnant  to  the  constitution,  treaties,  or  laws  of  the  United 
States, and  the  decision  is  in  favour  of  their  validity  ;  or  where 
13  drawn  in  question  the  construction  ofany  clause  of  the  costitu- 
i  ion  or  of  a  treaty,  or  statu  teof,or  commission  held  under  the  Uni- 
ted States,  and  the  decision  is  against  the  title,  right,  privi- 
lege, or  exemption  specially  set  up  or  claimed  by  either  par- 
ty, under  such  clause  of  the  sard  constitution,  treaty,  statute 
or  commission. 

The  clause  in  the  constitution  of  the  United  States,  which 
was  drawn  in  question  in  the  court,  from  whence  this  tran- 
script has  been  sent,  is  that  part  of  the  tenth  section  of  the 
first  article,  which  declares  that  "  no  state  shall  pass  any 
"  bill  of  attainder,  ex  post  facto  law,  or  any  law  impairing 
11  the  obligation  of  contracts."  Thedecisiou  of  the  state  court 
is  against  the  title  specially  claimed  by  the  plaintiffs  in  error, 
under  the  above  clause,  because  they  contend,  that  the  laws 
of  New-Hampshire  above  referred  to,  impair  the  obligation 
of  a  contract,  and  are  consequently  repugnant  lo»the  above 
clause  of  the  constitution  of  the    United    States,  and  void. 

There  are  then  two  questions  \\n  this  court  to  decide  : 

1st.  Is  the  charter  granted  to  Dartmouth  College  on  the 
i  3th.  of  December  !7fW  to   be    considered,  ai    a    contract' 


332  DARTMOUTH  COLLEGE  VS.  WOODWARD. 

If  it  be,  then,  2dly  do  the  laws  in  question,  impair  its  obli- 
gation? 

1st.  What  is  a  contract?  It  may  be  defined  to  be  a 
transaction  between  two,  or  more  persons,  in  which  each 
party  comes  under  an  obligation  to  the  other,  and  each  re- 
ciprocally acquires  a  right  to  whatever  is  promised  by  the 
other(l).  Under  this  definition,  says  Mr.  Powell,  it  is  obvi- 
ous that  every  feoffment,  gift,  grant,  agreement,  promise, 
Sec.  may  be  included,  because  in  all  there  is  a  mutual 
consent  of  the  minds  of  the  parties  concerned  in  them  upon 
an  agreement  between  them,  respecting  some  property  or 
right  that  is  the  object  of  the  stipulation.  He  adds,  that 
the  ingredients  requisite  to  form  a  contract  are,  parties,  con- 
sent and  an  obligation  to  be  created,  or  dissolved  ;  these  must 
all  concur,  because  the  regular  effect  of  all  contracts  is  on 
one  side  to  acquire,  and  on  the  other  to  part  with  some  prop- 
erty, or  rights,  or  to  abridge,  or  to  restrain  natural  liberty 
by  binding  the  parties  to  do,  or  restraining  them  from  doing 
something,  which  before  they  might  have  done,  or  omitted. 
If  a  doubt  could  exist,  that,  a  grant  is  a  contract,  the  point 
was  decided  in  the  case  of  Fletcher  and  Peck,(2)  in  which 
it  was  laid  down,  that  a  contract  is  either  executory,  or  ex- 
ecuted ;  by  the  former,  a  party  binds  himself  to  do,  or  not 
to  do  a  particular  thing  ;  the  latter  is  one,  in  which  the  ob- 
ject of  the  contract  is  performed,  and  this  differs  in  nothing 
from  a  grant ;  but  whether  executed  or  executory  ;  they 
both  contain  obligations  binding  on  the  parties,  and  both  are 
equally  within  the  provisions  of  the  constitution  of  the  Unit- 
ed States,  which  forbids  the  state  governments  to  pass  laws 
impairing  the  obligation  of  contracts. 

If  then  a  grant  be  a  contract,within  the  meaning  of  the  con 
stitutionofjhe  United  States, the  next  enquiry  is,whether  the 
creation  of  a  corporation  by  charter  be  such   a  grant,  as   in- 

(l~)  Powell  on  Contracts  6. 
(2)  6^Crancli  8". 


SUPREME  COURT,  UNITED  STATES.        333 

eludes  an  obligation  of  the  nature  of  a  contract,  which  no 
state  legislature  can  pass  laws  to  impair? 

A  corporation  is  defined  by  Mr.  Justice  Blackstone(3) 
to  be  a  franchise. — It  is,  says  he,  "  a  franchise  for  a  num- 
"  ber  of  persons,  to  be  incorporated  aivd  exist  as  a  body  pol- 
"  itick,  with  a  power  to  maintain  perpetual  succession,  and 
"  to  do  corporate  acts,  and  each  individual  of  such  corpo- 
"  ration  is  also  said  to  have  a  franchise,  or  freedom."  This 
franchise  like  other  franchises, is  an  incorporeal  hereditament, 
issuing  out  of  something  real  or  personal,  or  concerning  or 
annexed  to,  and  exercisable  within  a  thing  corporate.  To 
this  grant,  or  this  franchise,  the  parties  are  the  king,  and  the 
persons,  for  whose  benefit  it  is  created,  or  trustees  for  them. 
The  assent  of  both  is  necessary.  The  subjects  of  the  grant 
are  not  only  privileges  and  immunities,  but  property,  or, 
which  is  the  same  thing,  a  capacity  to  acquire,  and  to  hold 
property  in  perpetuity.  Certain  obligations  are  created, 
binding  both  on  the  grantor,  and  the  grantees.  On  the  part 
of  the  former,  it  amounts  to  an  extinguishment  of  the  king's 
prerogative  to  bestow  the  same  identical  franchise  on  anoth- 
er corporate  body,  because  it  would  prejudice  his  prior 
grant(4).  It  implies  therefore  a  contract  not  to  reassert  the 
right  to  grant  the  franchise  to  another,  or  to  impair  it. 
There  is  also  an  implied  contract,  that  the  founder  of  a  pri- 
vate charity,  or  his  heirs,  or  other  persons  appointed  by 
him  for  that  purpose,  shall  have  the  right  to  visit,  and  to 
govern  the  co -potation,  of  which  he  is  the  acknowledged 
founder,  and  patron, and  also,  that  in  case  of  its  dissolution,  the 
reversionary  right  of  (he  founder  to  the  property,  with  which 
lie  had  endowed  it,  should  be   preserved  inviolate. 

The  rights  acquired  by  the  other  contracting  party  arc 
those  of  having  perpetual  succession,  of  suing,  and  being  su- 
ed, of  purchasing  lands  for  the    benefit    of   themselves    air' 

(5)2  Black.  Com.  57. 
(4) '2  Black.  Com.  57 


334  DAKTMOUTH  COLLEGE  VS.  WOODWARD. 

(heir  successors,  and  of  having  a  common  seal,  and  of  mak- 
ing bye-laws.  The  obligation  imposed  upon  them,  and 
which  forms  the  consideration  of  the  grant,  is  that  of  acting 
up  to  the  end  or  design  for  which  they  were  created  by 
their  founder.  Mr.  Justice  Buller  in  the  case  of  the  King  vs. 
Passraore(5),  says  that  the  grant  of  incorporation  is  a  com- 
pact between  the  crown  and  a  number  of  persons,  the  latter 
of  whom,  undertake,  in  consideration  of  the  privileges  be- 
stowed, to  exert  themselves  for  the  good  government  of  the 
place.  If  they  fail  to  perform  their  part  of  it,  there  is  an 
end  of  the  compact.  The  charter  of  a  corporation,  says 
Mr.  Justice  Blackstone,(6)  may  be  forfeited  through  neg- 
ligence, or  abuse  of  its  franchises,  in  which  case  the  law 
judges,  that  the  body  politick  has  broken  the  condition,  up- 
on which  it  was  incorporated,  and  thereupon  the  corpora-, 
tiou  is  void. 

It  appears  to  me,  upon  the  whole,  that  these  principles 
and  authorities  prove  incontrovertibly,  that  a  charter  of  in- 
corporation is  a  contract. 

2dly.  The  next  question  is,  do  the  acts  of  the  legislature 
of  New-Hampshire  of  the  2rth  of  June,  and  18th  and  26th 
of  December  1816,  impair  this  contract  within  the  true  in^ 
tent  and  meaning  of  the  constitution  of  the  United  States  ? 

Previous  to  the  examination  of  this  question,  it  will  be 
proper,  clearly  to  mark  the  distinction  between  the  differ- 
ent kinds  of  lay  aggregate  corporations,  in  order  to  prevent 
an}'  implied  decision  by  this  court  of  any  other  case,  than 
the  one  immediately  before  it. 

We  are  informed  by  the  case  of  Philips  vs.  Bury, (7) 
which  contains  all  the  doctrine  of  corporations  connected 
with  this  point,  that  there  are  two  kinds  of  corporations 
aggregate,  viz.  such  as  are  for  publick  government  and 
such  as  are   for  private   charity.     The  first  are   those  for 

(S)  3D.  Si  E.  246. 

(6) -2  Black.  Comm.4Si. 

(7)  l  Ld.  Baym.  5.  S.  C  2.  T.R.  546. 


SUPREME  COURT,  UNITED  STATES.        335 

the  government  of  a  town,  city,  or  the  like  ;  and  being  for 
publick  advantage,  are  to  be  governed  according  to  the 
law  of  the  land.  The  validity  and  justice  of  their  private 
laws  and  constitutions  are  examinable  in  the  king's  courts. 
Of  these  there  are  no  particular  founders,  and  consequent- 
ly no  particular  visitor.  There  are  no  patrons  of  these  cor- 
porations. But  private  and  particular  corporations  for  char- 
ity, founded  and  endowed  by  private  persons,  are  subject 
to  the  private  government  of  those,  who  erect  them,  and  are 
to  be  visited  by  them  or  their  heirs,  or  such  other  persons, 
as  they  may  appoint.  The  only  rules  for  the  government 
of  these  private  corporations  are  the  laws  and  constitutions 
assigned  by  ihe  founder.  This  right  of  government  and 
visitation  arises  from  the  property,  which  the  founder  had 
in  the  lands  assigned  to  support  the  charity ;  and,  as  he  is 
the  author  of  the  charity,  the  law  invests  him  with  the  ne- 
cessary power  of  inspecting  and  regulating  it.  The  authori- 
ties are  full  to  prove,  that  a  college  is  a  private  charity,  as 
well  as  a  hospital,  and  that  there  is,  in  reality,  no  difference 
between  them,  except  in  degree  ;  but  they  are  within  the 
same  reason  and  both  eleemosynary. 

These  corporations  civil  and  eleemosynary  which  differ 
from  each  other  so  especially  in  their  nature  and  constitu- 
tion, may  very  well  differ  in  matters  which  concern  their 
rights  and  privileges,  and  their  existence  and  subjection  to 
publick  controul.  The  one  is  the  mere  creature  of  public  in- 
stitution, created  exclusively  for  the  publick  advantage  with- 
out other  endowments,  lhan  such  as  the  king  or  government 
may  bestow  upon  it,  and  having  no  other  founder  or  visitor, 
than  the  king  or  government,  the  fundator  incipiens.  The 
validity  and  justice  of  its  laws  and  constitution  are  examinable 
by  the  courts  having  jurisdiction  over  them;  and  they  are  sub- 
ject to  the  general  law  of  the  land.  It  would  seem  reasonable, 
that  such  a  corporation  may  be  controulcd  and  it.s  constitu- 
tion altered  and  amended  bv  the    Government    in  such  man- 


336  DARTMOUTH  COLLEGE  VS.  WOODWARD. 

ner  as  (be  publick  interest  may  require.  Such  legislative 
interferences  cannot  be  said  to  impair  the  contract,  by 
which  the  corporation  was  formed,  because  there  is  in  reali- 
ty but  one  party  to  it,  the  trustees,  or  governours  of  the 
corporation  being  merely  the  trustees  for  the  publick,  the 
cestui  que  trust  of  the  foundation.  These  trustees  or  gov- 
ernours have  no  interest,  no  privileges  or  immunities,  which 
are  violated  by  such  interference,  and  can  have  no  more 
right  to  complain  of  them,  than  an  ordinary  trustee,  who  is 
called  upon  in  a  court  of  equity  to  execute  the  trust.  They 
accepted  the  charter  for  the  publick  benefit  alone,  and  there 
would  seem  to  be  no  reason  why  the  government  under  pro- 
per limitations  should  not  alter  or  modify  sucfe-  a  grant  at 
pleasure.  But  the  case  of  a  private  corporation  is  entirely 
different.  That  is  the  creature  of  private  benefaction  for 
a  charity  or  private  purpose.  It  is  endowed  and  founded 
by  private  persons,  and  subject  to  their  controul,  laws  and 
visitation,  and  not  to  the  general  controul  of  the  government ; 
and  all  these  powers,  rights  and  privileges,  flow  from  the 
property  of  the  founder,  in  the  funds  assigned  for  the  sup- 
port of  the  charity.  Although  the  king  by  the  grant  of  the 
ciiarter  is  in  some  sense  the  founder  of  all  eleemosynary 
corporations,  because,  without  his  grant  they  cannot  exist ; 
yet  the  patron  or  endower,  is  the  perficient  founder,  to 
whom  belongs,  as  of  right,  all  the  powers  and  privileges, 
which  have  been  described.  With  such  a  corporation,  it  is 
not  competent  for  the  legislature  to  interfere.  It  is  a  fran- 
chise, or  incorporeal  hereditament,  founded  upon  private 
property,  devoied  by  its  patron  to  a  private  charity  of  a 
peculiar  kind,  the  offspring  of  his  own  will  and  pleasure, 
(o  be  managed  and  visited  by  persons  of  his  own  appoint- 
ment, according  to  such  laws  and  regulations,  as  he,  or  the 
persons  so  selected  may  ordain. 

It  has  been  shewn,  that  the  charter  is  a  contract,  on   the 
part  of  the  government,  that  the  property,  with  which  the 


SUPItRME  COURT,  UNITED  STATES.  337 

charity  is  endowed,  shall  be  forever  vested  in  a  certain  num- 
ber of  persons  and  their  successors  to  subserve  the  particu- 
lar purposes  designated  by  the  founder  ;  and  to  be  manag- 
ed in  a  particular  way.  If  a  law  increases,  or  diminishes 
the  number  of  the  trustees,  they  are  not  the  persons,  which 
the  grantor  agreed  should  be  the  managers  of  the  fund.  If 
it  appropriate  the  fund  intended  for  the  support  of  a  partic- 
ular charity  to  that  of  some  other  charity,  or  to  an  entirely 
different  charity, the  grant  is  in  effect  set  aside,  and  a  new  con- 
tract substituted  in  its  place  ;  thus  disappointing  complete- 
ly the  intentions  of  the  founder  by  changing  the  objects  of 
his  bounty.  And  can  it  be  seriously  contended,  that  a  law, 
which  changes  so  materially  the  terms  of  a  contract,  does 
not  impair  it  ?  In  short  does  not  every  alteration  of  a  con- 
tract, however  unimportant,  even  though  it  be  manifestly  for 
the  interest  of  the  party  objecting  to  it,  impair  its  obligation? 
ffthe  assent  of  all  the  parties  to  be  bound  by  a  contract  be 
of  its  essence,  how  is  it  possible,  that  anew  contract,  substi- 
tuted for,  or  engrafted  on  another  without  such  assent,  should 
not  violate  the  old  charter  ? 

This  course  of  reasoning,  which  appears  to  be  perfectly 
manifest,  is  not  without  authority  to  support  it.  Mr.  Jus- 
tice Blackstone  lays  it  down(8),  that  the  same  identical 
franchise,  that  has  been  before  granted  to  one,  cannot  be 
bestowed  on  another  ;  and  the  reason  assigned  is,  that  it 
would  prejudice  the  former  grant.  In  the  King  vs.  Pass- 
more(9)  lord  Kenyon  says  that  an  existing  corporation  can- 
not have  another  charter  obtruded  upon  it  by  the  crown. — 
If  may  reject  it,  or  accept  the  whole,  or  any  part  of  the  new 
charter.  The  reason  is  obvious.  A  charter  is  a  contract, 
to  the  validity  of  which  the  consent  of  both  parties  is  essen- 
tial, and  therefore  it  cannot  be  altered,  or  added  to  without 
•uich  consent. 

(8)  'J  Rlac.  Com.  37- 

(9)  .3  D.  &t  E  JiO- 

M 


338  DARTMOUTH  COLLEGE  VS.  WOODWARD. 

But  the  case  of  Terrettvs.  Taylor (10)  fully  supports  the 
distinction  above  stated  between  civil  and  private  corpora- 
tions, and  is  entirely  in  point.  It  was  decided  in  that  case, 
that  a  private  corporation  created  by  the  legislature  may 
lose  its  franchises  by  misuser  or  nonuser,  and  may  be  re- 
sumed by  the  government  under  a  judicial  judgment  of  for- 
feiture. In  respect  to  publick  corporations  which  exist 
only  for  publick  purposes,  such  as  towns,  cities,  Sec.  the 
legislature  may  under  proper  limitations  change,  modify, 
enlarge,  or  restrain  them,  securing  however  the  property  for 
the  use  of  those  for  whom,  and  at  whose  expense  it  was 
purchased.  But  it  is  denied,  that  it  has  power  to  repeal 
statutes,  creating  private  corporations,  or  confirming  to 
them  property  already  acquired  under  the  faith  of  previous 
laws  ;  and  that  it  can  by  such  repeal,  vest  the  property  of 
such  corporations  in  the  state,  or  dispose  of  the  same  to  such 
purposes,  as  it  may  please,  without  the  consent  or  default 
of  the  corporators.  Such  a  law,  it  is  declared,  would  be  re- 
pugnant both  to  the  spirit,  and  the  letter  of  the  constitution 
of  the  United  States. 

If  these  principles,  before  laid  down,  be  correct,  it  can- 
not be  denied,  that  the  obligations  of  the  charter  to  Dart- 
mouth College  are  impaired  by  the  laws  under  considera- 
tion. The  name  of  the  corporation,  its  constitution,  and 
government,  and  the  objects  of  the  founder,  and  of  the  gran- 
tor of  the  charter,  are  totally  changed.  By  the  charter  the 
property  of  this  founder  was  vested  in  twelve  trustees,  and 
no  more,  to  be  disposed  of  by  them,  or  a  majority,  for  the 
support  of  a  college,  for  the  education,  and  instruction  of 
the  Indians,  and  also  of  English  youth,  and  others.  Under 
the  late  acts  the  trustees  and  visitors  are  different ;  and  the 
property  and  franchises  of  the  college  are  transferred  to  dif- 
ferent, and  new  uses,  not  contemplated  by  the  founder.  In 
short  it  is  most  obvious,  that  the  effect  of  these  laws,  is,  to 

(10)  9  Cranch  43. 


SUPREME  COURT,  UNITED  STATES.  339 

abolish  the  old  corporation,  and  to  create  a  new  one  in  its 
stead.  The  laws  of  Virginia,  referred  to  in  the  case  of 
Terrett  vs.  Taylor,  authorized  the  overseers  of  the  poor 
to  sell  the  glebes  belonging  to  the  protestant  episcopal 
church,  and  to  appropriate  the  proceeds  to  other  uses.  The 
laws  in  question  divest  the  trustees  of  Dartmouth  College 
of  the  property  vested  in  them  by  the  founder,  and  vest  it 
in  other  trustees,  for  the  support  of  a  different  institution, 
called  Dartmouth  University.  In  what  respects  do  they 
differ  ?  Would  the  difference  have  been  greater  in  princi- 
ple, if  the  law  had  appropriated  the  funds  of  the  college  to 
the  making  of  turnpike  road3,  or  to  any  other  purpose  of  a 
publick  nature  ?  In  all  respects,  in  which  the  contract  has 
been  altered  without  the  assent  of  the  corporation,  its  obli- 
gations have  been  impaired  ;  and  the  degree  can  make  no 
difference  in  the  construction  of  the  above  provision  of  the 
constitution. 

It  has  been  insisted  in  the  argument  at  the  bar,  that  Dart- 
mouth College,  was  a  mere  civil  corporation,  created  for  a 
publick  purpose,  the  publick  being  deeply  interested  in  the 
education  of  its  youth  ;  and  that  consequently  the  charter 
was  as  much  under  the  controul  of  the  government  of  New- 
Hampshire,  as  if  the  corporation  had  concerned  the  gov- 
ernment of  a  town  or  city.  But  it  has  been  shewn,  that  the 
authorities  are  all  the  other  way.  There  is  not  a  case  to  be 
found,  which  contradicts  the  doctrine  laid  down  in  the  case 
of  Philips  vs.  Bury,  viz.  that  a  college  founded  by  an  indi- 
vidual, or  individuals  is  a  private  charity,  subject  to  the 
government  and  visitation  of  the  founder,  and  not  to  the  un- 
limited controul  of  the  government. 

It  is  objected,  in  this  case,  that  Dr.  Wheelock  is  not  the 
founder  of  Dartmouth  College.  Admit  he  is  not.  How 
would  this  alter  the  case  '.'  Neither  the  king,  nor  the  province 
of  New-Hampshire,  was  flit;  founder;  and  if  the  contribu 
tiou^  made  by  the  goveniour  of   Yu -Hampshire,  by   tlmsr 


340  DARTMOUTH  COLLLGE  VS.  WOODWABl). 

persons,  who  granted  lands  for  the  college  in  order  to  induce 
its  location  in  a  particular  part  of  the  state,  by  the  other 
liberal  contributors  in  England  and  America,  bestow  upon 
them  claims  equal  with  Dr.  Wheelock,  still  it  would  not  al- 
ter the  nature  of  the  corporation,  and  convert  it  into  one 
for  publick  government.  It  would  still  be  a  private  elee- 
mosynary corporation,  a  private  charity  endowed  by  a 
number  of  persons,  instead  of  a  single  individual.  But  the 
fact  is,  that  whoever  may  mediately  have  contributed  to 
swell  the  funds  of  this  charity,  they  were  bestowed  at  the 
solicitation  of  Dr.  Wheelock,  and  vested  in  persons  ap- 
pointed.  by  him,  for  the  use  of  a  charity,  of  which  he  was 
the  immediate  founder,  and  is  so  styled  in  the  charter. 

Upon  the  whole,  I  am  of  opinion,  that  the  above  acts  of 
New-Hampshire,  not  having  received  the  assent  of  the  cor- 
porate body  of  DartmoutL  College,  are  not  binding  on  them, 
and  consequently,  that  the  judgment  of  the  state  court 
ought  to  be  reversed. 

Mr.  Justice  Johnson',  concurred  for  the  reasons  stated 
by  the  Chief  Justice. 

Mr.  Justice  Livingston,  concurred  for  the  reasons 
stated  by  the  Chief  Justice  and  Justices  Washington  and 
Story. 

Mr.  Justice  Story. — This  is  a  cause  of  great  impor- 
tance, and  as  the  very  learned  discussions,  as  well  here,  as 
in  the  state  court,  shew,  of  no  inconsiderable  difficulty — 
There  are  two  questions,  to  which  the  appellate  jurisdiction 
of  this  court  properly  applies.  1.  Whether  the  original 
charter  of  Dartmouth  College  is  a  contract  within  the  pro- 
hibitory clause  of  the  constitution  of  the  United  Slates, 
which  declares,  that  no  state  shall  pass  any  "  law  impairing 
ihe  obligation  of  contracts."  2.  If  so,  whether  the  legis- 
lative acts  of  New-Hampshire  of  the  2Tth  of  June,  and  of 
'he  18th  and  '27th  of  December  1816,  or  any  of  them?  im- 
pair the  obligations  of  that  charter. 


SUPREME  COURT,  UNITED  STATES.  341 

It  will  be  necessary,  however,  before  we  proceed  to  dis- 
cuss these  questions,  to  institute  an  inquiry  into  the  nature, 
rights  and  duties  of  aggregate  corporations  at  common  lavr, 
that  we  may  apply  the  principles,  drawn  from  this  source, 
to  the  exposition  of  this  charter,  which  was  granted  emphat- 
ically with  reference  to  that  law. 

An  aggregate  corporation  at  common  law  is  a  collection 
of  individuals  united  into  one  collective  body  under  a  spe- 
cial name  and  possessing  certain  immunities,  privileges  and 
capacities  in  its  collective  character,  which  do  not  belong 
to  the  natural  persons  composing  it.  Among  olher  things  it 
possesses  the  capacity  of  perpetual  succession,  and  of  act- 
ing by  the  collected  vote  or  will  of  its  component  members, 
and  of  suing  and  being  sued  in  all  things  touching  its  corpo- 
rate rights  and  duties.  It  is  in  short  an  artificial  person, ex- 
isting in  contemplation  of  law,  and  endowed  with  certain 
powers  and  franchises,  which  though  they  must  be  exercised 
through  the  medium  of  its  natural  members,  are  yet  consid- 
ered as  subsisting  in  the  corporation  itself,  as  distinctly,  as 
if  it  were  a  real  personage.  Hence  such  a  corporation  may- 
sue  and  be  sued  by  its  own  members ;  and  may  contract 
with  them  in  the  same  manner  as  with  any  strangers(l).  A 
great  variety  of  these  corporations  exist  in  every  country 
governed  by  the  common  law  ;  in  some  of  which  the  corpo- 
rate existence  is  perpetuated  by  new  elections  made  from 
time  to  time;  and  in  others  by  a  continual  accession  of  new 
members  without  any  corporate  act.  Some  of  these  corpo- 
rations are,  from  the  particular  purposes  to  which  they  arc 
devoted,  denominated  spiritual,  and  some  lav  ;  and  the  latter 
are  again  divided  into  civil  and  eleemosynary  corporations. 
It  is  unnecessary  in  this  place,  to  enter  into  any  examination 
of  civil  corporations.  Eleemosynary  corporations  are  such 
as  are  constituted  for  the  perpetual  distribution  of  the  free 
ilrns  and  bounty  of  the  founder,  in  such  manner  as  he  has  di- 

(\)  I  IJI.  Com.  iC,fj .;-        i  Kv<!  i.  .,  ...  (.,_  6"-  15J.— 1  Woo!.  ..  iTl.kr.if.n- 


342      DARTMOUTH  COLLEGE  VS.  WOODWARD. 

rected  ;  and  in  this  class  are  ranked  hospitals  for  the  relief 
of  poor  and  impotent  persons,  and  colleges  for  the  promo- 
tion of  learning  and  piety  and  the  support  of  persons  engaged 
in  literary  pursuits (2). 

Another  division  of  corporations  is  into  publick  and  pri- 
vate. Publick  corporations  are  generally  esteemed  such  as 
exist  for  publick  political  purposes  only,  such  as  towns, 
cities,  parishes  and  counties  ;  and  in  many  respects  they 
are  so,  although  they  involve  some  private  interests  ;  but 
strictly  speaking  publick  corporations  are  such  only  as  are 
founded  by  the  government  for  publick  purposes,  where  the 
whole  interests  belong  also  to  the  government.  If  therefore 
the  foundation  be  private  though  under  the  charter  of  the 
government,  the  corporation  is  private,  however  extensive 
the  uses  may  be,  to  which  it  is  devoted,  either  by  the  bounty 
of  the  founder  or  the  nature  and  objects  of  the  institution. 
For  instance,  a  bank  created  by  the  government  for  its  own 
uses,  whose  stock  is  exclusively  owned  by  the  governmeu  t 
is,  in  the  strictest  sense,  a  publick  corporation.  So  a  hos- 
pital created  and  endowed  by  the  government  for  general 
charity.  But  a  bank,  whose  stock  is  owned  by  private  per- 
sons, is  a  prirate  corporation,  although  it  is  erected  by  the 
government,  and  its  objects  and  operations  partake  of  a  pub- 
lick nature.  The  same  doctrine  may  be  affirmed  of  insur- 
ance, canal,  bridge  and  turnpike  companies.  In  all  these 
cases  the  uses  may  in  a  certain  sense  be  called  publick  ;  but 
the  corporations  are  private  ;  as  much  so,  indeed,  as  if  the 
franchises  were  vested  in  a  single  person. 

This  reasoning  applies   in  its  full  force  to  eleemosynary 

corporations.     A  hospital   founded  by  a  private  benefactor 

is,  in  point  of  law,  a  private  corporation,   although  dedicated 

by  its  charter  to  general  charity.     So  a  college  founded  and 

endowed  in  the  same  manner,  although  being  for  th<5  promo- 

(2)  1  Bl.Comm.  469. 470.471. 482.— iKyd  Corp.  25.— 1  Woode9.474~  Atty. 
Gen.  vs.  Whorwood,  1  Ves.  53i. — St.  Johns  College  vs.  Todington,  t 
BU  Hep.  81.  S.  C— 1  Bur.  200.— Phillips  vs.  Bury,  1  Ld.  Ray.  f..  S- 
C — 2  T.  Hep.  346. — Porter's  case,  1  Co.  22-  b.  23. 


SlLJPREME  court,  united  states.  243 

lion  of  learning  and  piety,  it  may  extend  its  charity  to  schol- 
ars from  every  class  in  the  community,  and  thus  acquire  the 
character  of  a  publick  institution.  This  is  the  unequivocal 
doctrine  of  the  authorities  ;  and  cannot  be  shaken  but  by 
undermining  the  most  solid  foundations  of  the  common 
law  (8). 

It  was  indeed  supposed  at  the  argument,  that  if  the  uses 
of  an  eleemosynary  corporation  be  for  general  charity,  this 
alone  would  constitute  it  a  publick  corporation.  But  the 
law  is  certainly  not  so.  To  be  sure,  in  a  certain  sense,  eve- 
ry charity,  which  is  extensive  in  its  reach,  may  be  called  a 
publick  charity,  in  contradistinction  to  a  charity  embracing 
but  a  few  definite  objects.  In  this  sense  the  language  was 
unquestionably  used  by  lord  Hardwicke  in  the  case  ciled  at 
the  argument(4)  and  in  this  sense  a  private  corporation 
may  well  enough  be  denominated  a  publick  charity.  So 
it  would  be,  if  the  endowment,  instead  of  being  vested  in 
a  corporation,  were  assigned  to  a  private  trustee  ;  yet  in  such 
a  case  no  one  would  imagine,  that  the  trust  ceased  to  be 
private,  or  the  funds  became  publick  property.  That  the 
mere  act  of  incorporation  will  not  change  the  charity  from  a 
private  to  a  publick  one  is  most  distinctly  asserted  in  the 
authorities.  Lord  Hardwicke  in  the  case  already  alluded 
to(4)  says  "  the  charter  of  the  crown  cannot  make  a  char- 
"  ity  more  or  less  publick  •,  but  only  more  permanent  than 
"  it  would  otherwise  be  ;  but  it  is  the  extensivencss,  which 
"  will  constitute  it  a  publick  one.  A  devise  to  the  poor  of 
"  the  parish  is  a  publick  charity.  Where  testators  leave 
"it  to  the  discretion  of  a  trustee  to  choose  out  the  objects, 
cc  though  each  particular  object  may  be  said  (o  be  private  ; 
"  yet  in  the  extensiveneas  of  the  benefit  accruing  from 
"them,  they  may  properly  be  called  publick  charities. 
"  A    sum    to   be   disposed    of  by    A.    B.  and    his    execu- 

(.1)  Phillips  vs.  Hurv,  I  I,<l.  R;iv  5.  0-  S.  C.—  'Z  T.  Hep.  .340. 
(4>  Atlv.   (irncral'vi.    l'earse,    '*  <Mk.  S7. — 1  Hac.   AUr.    tit.  Cbantal.le 
'  nwi'E.  .:.S'J. 


344      DARTMOUTH  COLLEGE  VS.  WOODWARD. 

"  tors  at  their  discretion  among  poor  house-keepers  is  of  thin 
*'  kind."  The  charity  then  may  in  this  sense  be  publick, 
although  it  be  administered  by  private  trustees ;  and  for  the 
same  reason  it  may  thus  be  publick,  though  administered 
by  a  private  corporation.  The  fact  then,  that  the  charity 
is  publick,  affords  no  proof,  that  the  corporation  is  also  pub- 
lick ;  and  consequently  the  argument,  so  far  as  it  is  built 
on  this  foundation,  falls  to  the  ground.  If  indeed  the  argu- 
ment were  correct,it  would  follow  that  almost  every  hospit- 
al and  college  would  be  a  publick  corporation  ;  a  doctrine 
utterly  irreconcileable  with  the  whole  current  of  decisions 
since  the  time  of  lord  Coke(5). 

When  then  the  argument  assumes,  that  because  the  char- 
ity is  publick,  the  corporation  is  publick,  it  manifestly  con- 
founds the  popular  with  the  strictly  legal  sense  of  the  terms. 
And  if  it  stopped  here,  it  would  not  be  very  material  to 
correct  the  error.  But  it  is  on  this  foundation,  that  a  su- 
perstructure is  erected,  which  is  to  compel  a  surrender  of 
the  cause.  When  the  corporation  is  said  at  the  bar  to  be 
publick,  it  is  not  merely  meant,  that  the  whole  community 
may  be  the  proper  objects  of  the  bounty,  but  that  the  gov- 
ernment have  the  sole  right,  as  trustees  of  the  publick  in- 
terests, to  regulate,  controul,  and  direct  the  corporation,  and 
its  funds  and  its  franchises  at  its  own  good  will  and  pleasure. 
Now  such  an  authority  does  not  exist  in  the  government, 
except  where  the  corporation  is  in  the  strictest  sense  pub- 
lick, that  is,  where  its  whole  interests  and  franchises  are  the 
exclusive  property  and  domain  of  the  government  itself.  If 
it  had  been  otherwise,  courts  of  law  would  have  been  spar- 
ed many  laborious  adjudications  in  respect  to  eleemosynary 
corporations  and  the  visitatorial  powers  over  them  from  the 
time  of  lord  Holt  down  to  the  present  day(6).  Nay  more, 
private  trustees  for  charitable  purposes  would  have   been 

(f>)  The  case  of  Sutton's  Hospital.  10  Co-  23. 

(i)  Rex  vs.  Bury,  1  Ld.   Ray.  5.  S.  €.— Comb.  265.— Holt.  715 — 1  Shovr. 

360, — 4  Mod.  106. — Skiu-  447.  and  Ld.  Holt'sopinion  from  his  own  Ms, 

in  2  T.  Rep.  346- 


SUPREME  COURT,  UNITED  STATES.  345 

liable  to  have  the  property  confided  to  their  care  taken  away 
from  them  without  any  assent  or  default  on  their  part,  and 
the  administration  submitted,  not  to  the  controul  of  law  and 
equity,  but  to  the  arbitrary  discretion  of  the  government. 
Yet  who  ever  thought  before,that  the  munificent  gifts  of  pri- 
vate donors  for  general  charity  became  instantaneously  the 
property  of  the  government ;  and  that  the  trustees  appointed 
by  the  donors,  whether  corporate  or  unincorporated,  might 
be  compelled  to  yield  up  their  rights  to  whomsoever  the 
government  might  appoint  to  administer  them  ?  If  we  were 
to  establish  such  a  principle,  it  would  extinguish  all  future 
eleemosynary  endowments  ;  and  we  should  find  as  little  of 
publick  policy,  as  we  now  find  of  law  to  sustain  it. 

An  eleemosynary  corporation,  then,  upon  a  private  founda- 
tion, being  a  private  corporation,  it  is  next  to  be  considered, 
what  is  deemed  a  foundation,  and  who  is  the  founder.  This 
cannot  be  stated  with  more  brevity  and  exactness  than  in 
the  language  of  the  elegant  commentator  upon  the  laws  of 
England.  "  The  founder  of  all  corporations  (says  Sir  Wil- 
"  liam  Blackstone)  in  the  strictest  and  original  sense  is  the 
"  king  alone,  for  he  only  can  incorporate  a  society  ;  and  in 
"  civil  corporations,  such  as  mayor,  commonalty,  &c.  where 
"  there  are  no  possessions  or  endowments  given  to  the  body, 
"  there  is  no  other  founder  but  the  king  ;  but  in  eleemosy- 
"  nary  foundations,  such  as  colleges  and  hospitals,  where 
"  there  is  an  endowment  of  lands,  the  law  distinguishes  and 
"  makes  two  species  of  foundation,  the  one  fundatio  incipi- 
"  ensror  the  incorporation,  in  which  sense  the  king  is  the 
"  general  founder  of  all  colleges  and  hospitals;  the  other 
"  fundatio  perficiens,  or  the  dotation  of  it,  in  which  sense  the 
•' first  gift  of  the  revenue  is  the  foundation,  and  he,  who 
"  gives  them,  is  in  law  the  founder ;  and  it  is  in  this  last 
"  sense  we  generally  call  a  man  the  founder  of  a  college 
uor  hospital" (7). 

'-)  1  BJack-  Coram.  480-  19-  Co-  33- 

4.0 


:*46  DARTMOUTH  COLLEGE  VS.  WOODWARD. 

To  ail  eleemosynary  corporations  a  visitatorial  power  at- 
taches, as  a  necessary  incident  ;  for  these  corporations  be- 
ing composed  of  individuals,  subject  to   human    infirmities, 
are  liable,  as  well  as  private   persons,  to  deviate  from   the 
end  of  their  institution.     The  law  therefore   has*  provided, 
that  there  shall  somewhere  exist  a  power  to  visit,  inquire 
into,  and  correct  all  irregularities  and  abuses  in  such  corpo- 
rations, and  to  compel  the  original  purposes  of  the  charity 
to  be  faithfully  fulfilled (8).     The  nature  and  extent  of  this 
visitatorial  power  has   been  expounded  with  admirable  full- 
ness and  accuracy  by  lord  Holt  in  one  of  his  most  celebrat- 
ed judgments(9).     And  of  common   right  by  the   dotation 
the  founder   and  his  heirs  are  the  legal  visitors,  unless  the 
founder  has  appointed  and    assigned  another  person  to  be 
visitor.     For  the  founder  may,  if  he  please,  at  the  time  of 
the  endowment  part  with  his  visitatorial  power,  and  the  per- 
son to  whom  it  is  assigned,  will  in  that  case  possess  it  in  ex- 
clusion of  the  founder's  heirs(lO).  This  visitatorial  power  is 
therefore  an  hereditament  founded  in  property,  and  valuable 
in  intendment  of  law  ;  and  stands  upon  the  maxim,  that  he, 
who  gives  bis  property,  has  a  right  to  regulate   it  in  future. 
It  includes  also  the  legal  right  of  patronage,  for  as  lord  Holt 
justly  observes,  "  patronage  and  visitation   are   necessary 
consequents  one  upon  another."     No    technical   terms  are 
necessary  io  assign  or  vest  the  visitatorial  power;  it  is  suffi- 
cient, if  from  the  nature  of   the    duties  to  be  performed  by 
particular  persons  under  the  charter,  it  can  be  inferred,  that 
the  founder  meant   to  part  with  it  in   their  favour  ;  and  he 
may  divide  it  among  various  persons,  or  subject  it  to  any 
modifications  or  controul,  by  the  fundamental  statutes  of  the 
corporation.     But  where  the  appointment  is  given  in  gener- 
al terms  the  whole  power  vests  in  the  appointee(ll).  In  the 

(8)  1  Black.  Comm.  480. 

(9)  Phillips  vs.  Burj-,  1  Ld.  Ray.  5.  S.  C— 2  T-  Rep.  346. 
(JO)  1  Black. Comra.  482. 

(11)  Eden  vs.Foster,  2  P.  W.325 — Attorney  General  vs.  Middlelon,  2  Vez 
327.— St.  Johns  College  vs.  Todington,  1BI.  Rep.  84.  S.C--2  Bur.  200. 
—Attorney  General  vs.  Clare  College,  3  Atk.  G62.  S-  C,— I  Ve?.  7S. 


SUPREME  COURT,  UNITED  STATES.  3ir 

construction  of  charters  too,  it  is  a  general  rule,  that  if  the 
objects  of  the  charity  are  incorporated,  as  for  instance,  the 
master  and  fellows  of  a  college,  or  the  master  and  poor  of  a 
hospital,  the  visitatorial  power,  in  the  absence  of  any  special 
appointment,  silently  vests  in  the  founder  and  his  heirs.  But 
where  trustees  or  governours  are  incorporated  to  manage  the 
charity,  the  visitatorial  power  is  deemed  to  belong  to  them 
in  their  corporate  character(12). 

When  a  private  eleemosynary  corporation  is  thus  creat- 
ed by  the  charter  of  the  crown,  it  is  subject  to  no  other 
contronl  on  the  part  of  the  crown,  than  what  is  expressly  or 
implicit'y  reserved  by  the  charter  itself.  Unless  a  power 
be  reserved  for  this  purpose,  the  crown  cannot,  in  virtue  of 
its  prerogative,  without  the  consent  of  the  corporation,  alter 
or  amend  the  charter,  or  divest  the  corporation  of  any  of  its 
franchises,  or  add  to  them,  or  add  to,  or  diminish,  the  num- 
ber of  the  trustees,  or  remove  any  of  the  members, 
or  change  or  controul  the  administration  of  the  charity, 
or  compel  the  coiporatioj)  to  receive  a  new  charter.— 
This  is  the  uniform  language  of  the  authorities  and  forms 
one  of  the  most  stubborn  and  well  settled  doctrines  of  the 
common  law (13). 

But  an  eleemosynary,  like  every  other,  corporation,  is  sub- 
ject to  the  general  law  of  the  land.  It  may  forfeit  its  cor- 
porate franchises  by  misuser  or  nonuser  of  them.  It  is  sub- 
ject to  the  confrouling  authority  of  its  legal  visitor,  who,  tin- 
less  restrained  by  the  terms  of  the  charter,  may  amend  and 
repeal  its  statutes,  remove  its  officers,  correct  abuses,  and 
generally  superintend  the  management  of  the  trusts.  Where 
indeed  the  visitatorial  power  is  vested  in  the  trustee*  of  the 
charity  in  virtue  of  their  incorporation,  there  can  be  no 
amotion  of  them  from  their  corporate  capacity  — But  they 
are  not  therefore  placed  beyond  the  reach  of  the  law.      As 

(12:  Phillip*   1-  Hurv,  1  l>!.  Kay. 5.  S.C.— 1  T.Rcp. 346V— C.wn »*  Ruth- 

rtliirili,  1  Yc7.-4"2. —  Attwin-'y  <-<i"'ntl  *b-    MuMletou,  2    Vcz-  ;>„'"—- 
Caw  of  Sutton  Hospital,  I"*'.,.  .').  ,;i. 
.!        Se<-  Kex    >•,    I'..smiiu;<\>  T.  !(•■;>•  IT'.  ;.'n<l  tlif  cws  iImt     i-itc-1- 


348  DATMOUTH  COLLEGE  VS.  WOODWAR1X 

managers  of  the  revenues  of  the  corporation,  they  are  sub- 
ject to  the  general  superintending  power  of  the  court  of 
chancery,  not  as  itself  possessing  a  visitatorial  power  or  a 
right  to  controul  the  charity,  but  as  possessing  a  general  ju- 
risdiction in  all  cases  of  an  abuse  of  trusts  to  redress  griev- 
ances and  suppress  frauds (14).  And  where  a  corporation 
is  a  mere  trustee  of  a  charity,  a  court  of  equity  will  go  yet 
farther  ;  and  though  it  cannot  appoint  or  remove  a  corpora- 
tor, it  will  yet,  in  a  case  of  gross  fraud  or  abuse  of  trust,take 
away  the  trust  from  the  corporation  and  vest  it  in  other 
hands  (15). 

Thus  much  it  has  been  thought  proper  to  premise  res- 
pecting the  nature,  rights,  and  duties  of  eleemosynary  cor- 
porations, growing  out  of  the  common  law.  We  may  now 
proceed  to  an  examination  of  the  original  charter  of  Dart- 
mouth College. 

It  begins  by  a  recital  among  other  thiugs,  that  the  Rev*, 
Eleazer  Wheelock  of  Lebanon,  in  Connecticut,  about  the 
year  1754,  at  his  own  expense,  on  his  own  estate,  set  on 
foot  an  Indian  charity  school ;  and  by  the  assistance  of 
other  persons,  educated  a  number  of  the  children  of  the  In- 
dians, and  employed  them  as  missionaries  and  schoolmas- 
ters among  the  savage  tribes  ;  that  the  design  became  rep- 
utable among  the  Indians,  so  that  more  desired  the  educa- 
tion of  their  children  at  the  school,  than  the  contributions 
in  the  American  colonies  would  support;  that  the  said 
Wheelock  thought  it  expedient  to  endeavour    to   procure 

(14)  2  Fonb.  Eq.  B.  S,  pt.  2.  ch.  1.  s.  1.  note  (a)— Coop.  Eq.  PI.  292.— 2 
Kyd.Corp.  195. — Green  vs.  Rutherforth,  1  Vez.  462. — Attorney  Gen- 
eral vs.  Foundling  Hospital, 4  Bro.Ch  .165.  S.  C. — 2  Vez.  jr.  42^— Eden 
vs.  Foster,  2  P.  W.  325 — 1  Woodes.  476. — Attorney  General  vs. 
Price,  3  Atk.  108.— Attorney  General  vs.  Lock,  3  Atk.  164.— Attor- 
ney General  vs.  Dixie,  13  Vez.  519. — Ex  parte,  Kirkbv  ltavensworth 
Hospital,  15  Vez.304.314 — Attorney  General  vs.  Earl  of  Clarendon. 
17  Vez.  491.  499.— Barkhamstead  Free  School,  2  Vez.  8c  Beame, 
134 — -Attorney  General  vs.  Corporation  of  Carmathen,  Coop.  Rep 
30. — Ma\  or,  Sec.  of  Colchester  vs.  Lowten,  1  Vez.  &  Beame,  226. — 
Rex  vs.  Watson,  2  Term  Rep.  199.— Attorney  General  --St  Utica  Ins. 
Co.  2  John-Ch.  R.  371 — Attorney  General  vs.  Middleton,  2  Vez-  327* 

(15)  Mayor,  &c.  of  Coventry  vs.  Attorney  General.  7  Bro.  Pari,  cases,  235' 
— Attorney  General  vs.  Earl  of  Clarendon,  17  Vez.  491. 499. — Attor- 
ney General  vs.  Utica  Ins.  Comp-  2  John-  Ch.  R.  371. 


SUPREME  COURT,  UNITED  STATES.  349 

contributions  in  England,  and  requested  the  Rev.  Nathan- 
iel  Whitaker  to  go  to  England  as  his  attorney  to  solicit, 
contributions,  and  also  solicited  the  Earl  of  Dartmouth  and 
others  to  receive  the  contributions  and  become  trustees 
thereof,  which  they  cheerfully  agreed  to,  and  he  constitut- 
ed them  trustees  accordingly  by  a  power  of  attorney,  and 
they  testified  their  acceptance  by  a  sealed  instrument; 
That  the  said  Wheelock  also  authorised  the  trustees  to  fix 
and  determine  upon  the  place  for  the  said  school  ;  and,  to 
enable  them  understanding^  to  give  the  preference,  laid 
before  them, the  several  offers  of  the  governments  in  Ameri- 
ca, inviting  the  settlement  of  the  school  among  them;  that 
a  large  number  of  the  proprietors  of  lands,  in  the  western 
parts  of  New-Hampshire,  to  aid  the  design,  and  consider- 
ing that  the  same  school  might  be  enlarged  and  improved 
to  promote  learning  among  the  English,  and  to  supply 
the  churches  there  with  an  orthodox  ministry,  promised 
large  tracts  of  land  for  the  uses  aforesaid,  provided  the 
school  should  be  settled  in  the  western  part  of  said  prov- 
ince ;  that  the  trustees  thereupon  gave  a  preference  to  the 
western  part  of  said  province,  lying  on  Connecticut  river, 
as  a  situation  most  convenient  for  said  school  :  That  the 
said  Wheelock  farther  represented  the  necessity  for  a  legal 
incorporation,  in  order  to  the  safety  and  ivell-being  of 
said  seminary,  and  its  being  capable  of  the  tenure  and 
disposal  of  lands  and  bequests  for  the.  use  of  the  same ; 
that  in  the  infancy  of  said  institution,  certain  gentlemen 
whom  he  had  already  nominated  in  his  last  will  (which  he 
had  transmitted  to  the  trustees  in  England)  to  be  trustees 
in  America,  should  be  the  corporation  now  proposed  ;  and 
lastly,  that  there  were  already  large  contributions  for  said 
school  in  the  hands  of  the  trustees  in  England,  and  further 
success  might  be  expected  ;  for  which  reason  the  said 
Wheelock  desired  they  might  be  invested  with  all  that 
power  therein,  which  could  consist  with  their  distance  from 


350  DARTMOUTH  COLLEGE  VS.  WOODWARD. 

the  same.      The  charter  after  these  recitals,  declares,  thai 
the  king  considering  the  premises,  and  being  willing  to  en- 
courage the  charitable   design,  and  that   the  best  means  of 
education  might  be  established  in  New-Hampshire   for  the 
benefit  thereof,  does  of  his  special   grace,  certain  knowl- 
edge, and  mere  motion,  ordain  and  grant,  that  there   be   a 
college  erected  in  New-Hampshire,  by  the   name  of  Dart- 
mouth college,  for  the  education  and    instruction   of  youth 
of  the  Indian  tribes,  and  also  of  English  youth  and  oth- 
ers ;  that  the  trustees  of  said  college  shall  be  a  corporation 
forever,  by  the  name  of  the  trustees  of  Dartmouth  College; 
that  the  then  governour  of  New-Hampshire,  the  said  Whee- 
lock,  and  ten  other  persons,  specially  named   in    the  char- 
ter, shall  be  trustees  of  the  said  college,  and   that  the  whole 
number  of  trustees  shall  forever  thereafter  consist  of  twelve 
and  no  more;  that  the  said  corporation  shall  have  power  to 
sue  and  to   be  sued    by  their  corporate  name,  and    to  ac- 
quire and  hold  for  the  use  of  said  Dartmouth  Co2/igpe,lands, 
tenements,  hereditaments,  and  franchises  ;  to  receive,  pur- 
chase, and  build  any  houses  for  the  use  of  said   college,  in 
such  town  in  the  western  part  of   New-Hampshire,   as  the 
trustees  or  a  major  part  of  them,  shall  by   a    written  instru- 
ment agree  on  ;  and  to  receive,  accept,  and  dispose  of  any 
lands,  goods,  chattels,  rents,  gifts,  legacies,  &c.  &c.  not  ex- 
ceeding the  yearly   value   of  6000/.      It  further  declares, 
that  the  trustees,  or  a  major  part  of  them,  regularly  conven- 
ed, (for  which  purpose  seven  shall  form  a  quorum)  shall 
have  authority  to  appoint  and   remove   the  professors,  tu- 
tors and  other  officers  of  the  college,  and  to  pay  them,  and 
also  such  missionaries  and  schoohnasters  as  shall  be  em- 
ployed by  the  trustees  for  instructing  the  Indians,  salaries 
and  allowances,  as  well  as  other  corporate  expenses,  out  of 
the    corporate  funds.     It    further  declares,   that,  the  said 
trustees,  as  often  as  one  or  more  of  the  trustees  shall  die,  or, 
by  removal   or  otherwise,  shall  according  to  their  judgment 


SUPREME  COURT,  UNITED  STATES.  351 

become  unfit  or  incapable  lo  serve  the  interests  of  the  col- 
lege, shall  have  power  to  elect  and  appoint  other  tmslees 
in  their  stead,  so  that  when  the  whole  number  shall  be  com- 
plete of  twelve  trustees,  eight  shall  be  resident  freeholders 
of  New-Hampshire,  and  seven  of  the  whole  number,  laymen. 
It  further  declares  that  the  trustees  shall  have  power  from 
time  to  time  to  make  and  establish  roles,  ordinances,  and 
laws  for  the  government  of  the  college  not  repugnant  to  the 
laws  of  the  land,  and  to  confer  collegiate  degrees.  It  fur- 
ther appoints  the  said  Wheelock,  whom  it  denominates  "the 
founder  of  the  college,"  to  be  president  of  the  college, 
wilh  authority  to  appoint  his  successor,  who  shall  be  presi- 
dent until  disapproved  of  by  the  trustees.  It  then  concludes 
with  a  direction,  that  it  shall  be  the  duty  of  the  president  to 
transmit  to  the  trustees  in  England,  so  long  as  they  should 
perpetuate  their  board,  and  as  there  should  be  Indian  ua- 
tives,  remaining  to  be  proper  objects  of  the  bounty,  an  an- 
nual account  of  all  the  disbursements  from  the  donations  in 
England,  and  of  the  general  plans  and  prosperity  of  the  in- 
stitution. 

Such  are  the  most  material  clauses  of  the  charter.  It  is 
observable,  in  the  first  place,  that  no  endowment  whatever 
is  given  by  the  crown  ;  and  no  power  is  reserved  to  the 
crown  or  government  in  any  manner  to  alter,  amend  or  con- 
troul  the  charter.  It  is  also  apparent,  from  the  very  terms 
of  the  charter,  that  Dr.  Wheelock  is  recognized  as  the 
founder  of  the  college,  and  that  the  charter  is  granted  upon 
his  application,  and  that  the  trustees  were  in  fact  nominated 
by  him.  In  the  next  place  it  is  as  apparent,  that  the  ob- 
jects of  the  institution  are  purely  charitable,  for  the  distri- 
bution of  the  private  contributions  of  private  benefactors. 
The  charity  was,  in  the  sense  already  explained,  a  publick 
charity,  that  is,  for  the  general  promotion  of  learning  and 
piety;  but  in  this  respect  it.  was  just  as  much  publick  be- 
fore, as  after  the  incorporation.      The   only   effect   of   the 


352  DARTMOUTH  COLLEGE  VS.  WOODWARD. 

charter  was  to  give  permanency  to  the  design,  by  enlarging 
the  sphere  of  its  action  and  granting  a  perpetuity  of  corpo- 
rate powers  and  franchises  the  better  to  secure  the  adminis- 
tration ol  the  benevolent  donations.  As  founder,  too,  Dr. 
Wheelock  and  his  heirs  would  have  been  completely  cloth- 
ed with  the  visitatorial  power  ;  but  the  whole  government 
and  controul,  as  well  of  the  officers  as  of  the  revenues  of 
the  college,  being  with  his  consent  assigned  to  the  trustees 
in  their  corporate  character,  the  visitatorial  power,  which  is 
included  in  this  authority,  rightfully  devolved  on  the  trus- 
tees. As  managers  of  the  property  and  revenues  of  the 
corporation,  they  were  amenable  to  the  jurisdiction  of  the 
judicial  tribunals  of  the  state  ;  but  as  visitors,  their  discre- 
tion was  limited  only  by  the  charter,  and  liable  to  no  super- 
vision or  controul,  at  least  unless  it  was  fraudulently  misap- 
plied. 

From  this  summary  examination  it  follows,  that  Dartmouth 
College  was,  under  its  original  charter,  a  private  eleemosy- 
nary corporation,  endowed  with  the  usual  privileges  and 
franchises  of  such  corporations,  and,  among  others,  with  a 
legal  perpetuity,  and  was  exclusively  under  the  government 
and  controul  of  twelve  trustees,  who  were  to  be  elected  and 
appointed,  from  time  to  time,  by  the  existing  board,  as  va- 
cancies or  removals  should  occur. 

We  are  now  led  to  the  consideration  of  the  first  question 
in  the  cause,  whether  this  charter  is  a  contract,  within  the 
clause  of  the  constitution  prohibiting  the  states  from  passing 
any  law  impairing  the  obligation  of  contracts.  In  the  case 
of  Fletcher  vs.  Peck(16),  this  court  laid  down  its  exposition 
of  the  word  "contract"  in  this  clause,  in  the  following  man- 
ner. "  A  contract  is  a  compact  between  two  or  more  per- 
**  sons,  and  either  executory  or  executed.  An  executory 
"  contract  is  one,  in  which  a  party  binds  himself  to  door  not 
"  to  do  a  particular  thing.      A  contract  executed  is  one  in 

(16)  6  Cranch  87. 136- 


SUPREME  COURT,  UNITED  STATES.  353 

"  which  the  object  of  the  contract  is  performed;  and  this, 
"  says  Blackstone,  differs  in  nothing  from  a  grant.  A  con- 
"  tract  executed,  as  well  as  one  that  is  executory,  contains 
"  obligations  binding  on  the  parties.  A  grant  in  its  own  na- 
"  ture  amounts  to  an  extinguishment  of  the  right  of  the  gran- 
"  tor,  and  implies  a  contract  not  to  reassert  that  right.  A 
"  party  is  always  estopped  by  his  own  grant."  This  lan- 
guage is  perfectly  unambiguous,  and  was  used  in  reference 
to  a  grant  of  land  by  the  governour  of  a  state  under  a  legist 
lative  act.  It  determines,  in  the  most  unequivocal  manner, 
that  the  grant  of  a  state  is  a  contract  within  the  clause  of  the 
constitution  now  in  question,  and  that  it  implies  a  contract 
not  to  reassume  the  rights  granted.  A  fortiori,  the  doctrine 
applies  to  a  charter  or  grant  from  the  king. 

But  it  is  objected,  that  ihe  charter  of  Dartmouth  College 
is  not  a  contract  contemplated  by  the  constitution,  because 
no  valuable  consideration  passed  to  the  king,  as  an  equiva- 
lent for  the  grant,  it  purporting  to  be  granted  ex  mero  moiu, 
and  further  that  no  contracts  merely  voluntary  are  within 
the  prohibitory  clause.  It  must  be  admitted,  that  mere  ex- 
ecutory contracts  cannot  be  enforced  at  law,  unless  there  be 
a  valuable  consideration  to  sustain  them;  and  the  constitu- 
tion certainly  did  not  mean  to  create  any  new  obligations,  or 
give  any  new  efficacy  to  nude  pacts.  But  it  must  on  the  oth- 
er hand  be  also  admitted,  that  the  constitution  did  intend  to 
preserve  all  the  obligatory  force  of  contracts,  which  they 
have  by  the  general  principles  of  law.  Now,  when  a  con- 
tract has  once  passed  bona  fide  into  grant,  neither  the  king, 
nor  any  private  person,  who  may  be  the  grantor,  can  recal  the 
grant  of  the  property,  although  the  conveyance  may  have 
been  purely  voluntary.  A  gift,  completely  executed,  is  ir^ 
recoverable.  The  property  conveyed  by  it  becomes,  as 
against  the  donor,  the  absolute  property  of  the  donee;  and 
no  subsequent  change  of  intention  of  the  donor  can  change 
■Ui 


354  DARTMOUTH  COLLEGE  VS.  WOODWARD. 

the  rights  of  the  donec(17).  And  a  gift  by  the  crown  of  in- 
corporeal hereditaments,  such  as  corporate  franchises,  when 
executed  comes  completely  within  the  principle,  and  is,  in 
the  strictest  sense  of  the  terms,  a  grant(18).  Was  it  ever 
imagined  that  land,  voluntarily  granted  to  any  person  by  a 
state,  was  liable  to  be  resumed  at  its  own  good  pleasure  T 
Such  a  pretension  would  under  any  circumstances  be  truly 
alarming,  but  in  a  country  like  ours,  where  thousands  of  land 
titles  had  their  origin  in  gratuitous  grants  of  the  states,  it 
would  go  far  to  shake  the  foundations  of  the  best  settled  es- 
tates. And  a  grant  of  franchises  is  not.  in  point  of  principle, 
distinguishable  from  a  grant  of  any  other  property.  If, 
therefore  this  charter  were  a  pure  donation,  when  the  grant 
was  complete  and  accepted  by  the  grantees,  it  involved  a 
contract,  that  the  grantees  should  hold,  and  the  grantor 
should  not  reassume  the  grant,  as  much  as  if  it  had  been 
founded  on  the  most  valuable  consideration. 

But  it  is  not  admitted,  that  this  charter  was  not  granted, 
for  what  the  law  deems  a  valuable  consideration.  For  this 
purpose  it  matters  not,  how  trifling  the  consideration  may 
be  ;  a  pepper  corn  is  as  good  as  a  thousand  dollars.  Nor 
is  it  necessary,  that  the  consideration  should  be  a  benefit  to 
the  grantor.  It  is  sufficient,  if  it  import  damage  or  loss,  or 
forbearance  of  benefit  or  any  act,  done,  or  to  be  done  on  the 
part  of  the  grantee.  It  is  unnecessary  to  state  cases  ;  they 
are  familiar  to  the  mind  of  every  lawyer(19). 

With  these  principles  in  view,  let  us  now  examine  the 
terms  of  this  charter.  It  purports  indeed  on  its  face  to  be 
granted  "  of  the  special  grace,  certain  knowledge,  and  mere 
motion"  of  the  king;  but  these  words  were  introduced  for 
a  very  different  purpose  from  that  now  contended  for.  It 
is  a  general  rule  of  the  common  law,   (the   reverse  of  that 

(17)  1  Rlack.Comra.  441.— Jenk.  Cent.  104- 

(18)  2  BLComm.317.346.— Shep.  Touch,  ch.  12.  p.  227. 

(  VJ)  I'illans  vs.  Van  Mierop.  per  Yates.  J.  3  Burr.1663 — Forth  vs.  Staur.ton 
'2  Saund.  Ltep.  2U-  Wiiliatu's  «ote  2,  ami  the  cases  there  cited* 


SUPREME  COURT,  UNITED  STATES.  355 

applied  in  ordinary  cases)  that  a  grant  of  the  king  at  ttue 
suit  of  the  grantee,  is  to  be  construed  most  beneficially  for 
the  king,  and  most  strictly  against  the  grantee.  Wherefore 
it  is  usual  to  insert  in  the  king's  grants  a  clause,  that  they 
are  made,  not  at  the  suit  of  the  grantee,  but  of  the  special 
grace,  certain  knowledge,  and  mere  motion  of  the  king  ;  and 
then  they  receive  a  more  liberal  construction.  This  is  the 
true  object  of  the  clause  in  question  as  we  are  informed  by 
the  most  accurate  authorities(20).  But  the  charter  also  on 
its  face  purports  to  be  granted  in  consideration  of  the  prem- 
ises in  the  introductory  recitals.  Now  among  these  recitals 
it  appears,  that  Dr.  "Wheelock  had  founded  a  charity  school 
at  his  own  expense  on  his  own  estate;  that  divers  contri- 
butions had  been  made  in  the  colonies,  by  others  for  its  sup- 
port ;  that  new  contributions  had  been  made  and  were  mak- 
ing in  England  for  this  purpose,  and  were  in  the  hands  of 
trustees  appointed  by  Dr.  Wheelock  to  qyct  in  his  behalf; 
that  Dr.  Wheelock  had  consented  to  have  the  school  estab- 
lished at  such  other  place  as  the  trustees  should  select ; 
that  offers  had  been  made  by  several  of  the  governments  in 
\merica  inviting  the  establishment  of  the  school  among  them; 
that  offers  of  land  had  also  been  made  by  divers  proprietors 
of  lands  in  the  western  parts  of  New-Hampshire,  if  the 
school  should  be  established  there  ;  that  the  trustees  had 
finally  consented  to  establish  it  in  New-Hampshire;  and 
that  Dr.  Wheelock  represented,  that  to  effectuate  the  pur- 
poses of  all  parties  an  incorporation  was  necessary.— Can 
it  be  truly  said,  that  these  recitals  contain  no  legal  consider- 
ation of  the  benefit  to  the  crown  or  of  forbearance  of  benefit 
on  the  other  side  ?  la  there  not  an  implied  contract  by  Dr. 
Wheelock,  if  a  charter  is  granted,  that  the  school  shall  be  re- 
moved from  his  estate  to  New-Hampshire  ?  and  (hat  he  will 
relinquish  all  his  controul  over  the  funds  collected  and  to  be 
collected  in  England  under  ins  auspices  and  subject  to  his  au- 

(20)   2  HI    Comm    3 i.\  Find.'*  !.y<    l<*    M  R«p.  1 1 ■.?  -I  *UV    -\Kn.l-t- 
rii'Tii    ]  iO--    |}a||.  \.  P.  1  t*i 


356  DARTMOUTH  COLLEGE  VS.  WOODWARD. 

thoritj?  that  he  will  yield  up  the  management  of  his  chari- 
ty-school lo  the  trustees  of  the  college?  that  he  will  relinquish 
all  the  offers  made  by  other  American  governments, and  devote 
his  patronage  to  this  institution?  It  will  scarcely  be  denied, 
that  he  gave  up  the  right  any  longer  to  maintain  the  charity 
school  already  established  on  his  own  estate  ;  and  that  the 
funds  collected  for  its  use  and  subject  to  his  management 
were  yielded  up  by  him  as  an  endowment  of  the  college — 
The  very  language  of  the  charter  supposes  him  to  be  the 
legal  owner  of  the  funds  of  the  charity  school,  and  in  vir- 
tue of  this  endowment  declare3  him  the  founder  of  the  col- 
lege. It  matters  not,  whether  the  funds  were  great  or  small ; 
Dr.  Wheelock  had  procured  them  by  his  own  influence,  and 
they  were  under  his  controul  to  be  applied  to  the  support 
of  uis  charity-school ;  and  when  he  relinquished  this  con- 
troul, he  relinquished  a  right  founded  in  property  acquired 
by  his  labours.  Besides  ;  Dr.  Wheelock  impliedly  agreed 
to  devote  his  fulure  services  to  the  college,  when  erected, 
by  becoming  president  thereof  at  a  period,  when  sacrifices 
must  necessarily  be  made  to  accomplish  the  great  design  in 
view.  If  indeed  a  pepper  corn  be  in  the  eye  of  the  law  of 
sufficient  value  to  found  a  contract,  as  upon  a  valuable  con- 
sideration, are  these  implied  agreements  and  these  relin- 
quishments of  right  and  benefit  to  be  deemed  wholly  worth- 
less? It  has  never  been  doubted,  that  an  agreement  not  to 
exercise  a  trade  in  a  particular  place  was  a  sufficient  con- 
sideration to  sustain  a  contract  for  the  payment  of  money. 
A  fortiori,  the  relinquishment  of  property,  which  a  person 
holds,  or  controuls  the  use  of,  as  a  trust,  is  a  sufficient  con- 
sideration ;  for  it  is  parting  with  a  legal  right.  Even  a  right 
of  patronage  (jus  patronatus)  is  of  great  value  in  intendment 
of  law.  Nobody  doubts,  that  an  advowson  is  a  valuable  he- 
reditament; and  yet  in  fact  it  is  but  a  mere  trust,  or  right 
of  nomination  to  a  benefice,  which  cannot  be  legally  sold  to 
the  intended  incumbent(21). 

(21 )  2  B].  Coonm.  22,  note  bv  Christian 


SUPREME  COURT,  LOTTED  STATES-  35f 

In  respect  to  Dr.  Wheelock,thenif  a  consideration  be  ne- 
cessary to  support  the  charter  as  a  contract,  it  is  to  be  found 
in  the  implied  stipulations  on  his  part  in  the  charter  itself. 
He  relinquished  valuable  rights, and  undertook  a  laborious  of- 
fice in  consideration  of  the  grant  of  the  incorporation. 

This  is  not  all.  A  charter  may  be  granted  upon  an  ex- 
ecutory as  well  as  an  executed  or  present  consideration. — 
When  it  is  granted  to  persons,  who  have  not  made  applica- 
tion for  it,  until  their  acceptance  thereof,  the  grant  is  yet  in 
fieri.  Upon  the  acceptance  there  is  an  implied  contract 
on  the  part  of  the  grantees  in  consideration  of  the  charter, 
that  they  will  perform  the  duties  and  exercise  the  authori- 
ties conferred  by  it.  This  was  the  doctrine  asserted  by  the 
late  learned  Mr.  Justice  Buller  in  a  modern  case(22).  He 
there  said,  "  I  do  not  know,  how  to  reason  on  this  point  bet- 
"  ter  than  in  the  manner  urged  by  one  of  the  relator's  coun- 
"  sel,  who  considered  the  grant  of  incorporation  to  be  a 
"  compact  between  the  crown  and  a  certain  number  of  the 
"subjects,  the  latter  of  whom  undertake  in  consideration  of 
•k  the  privileges,  which  are  bestowed,  to  exert  themselves  for 
"  the  good  government  of  the  place,"  (i.e.  the  place  incorpor- 
"  ated).  It  will  not  be  pretended,  that  if  a  charter  be  grant- 
ed for  a  bank,  and  the  stockholders  pay  in  their  own  funds, 
the  charter  is  to  be  deemed  a  grant  without  consideration, 
and  therefore  revocable  at  the  pleasure  of  the  grantor.  Yel 
here  the  funds  are  to  be  managed  and  the  services  perform- 
ed exclusively  for  the  use  and  benefit  of  the  stockholders 
themselves.  And  where  the  grantees  are  mere  trustees  to 
perform  services  without  reward,  exclusively  for  the  benefit 
of  others,  for  publick  charity,  can  it  be  reasonably  argued, 
that  these  services  are  less  valuable  to  the  government  than 
if  performed  for  the  private  emolument  of  the  trustees  them- 
selves .'  In  respect  then  to  the  trustees  also  there  wis  a 
valuable  consideration  for  the  charter,  the  consider/ <:  r>i 
('22)  Rex  t*  Paumore,  3  T.  R.  1 .99.  239. 246. 


358  DAHTMOUTII  COLLEGE  VS.  WOODWARfe. 

services  agreed  to  be  rendered  by  them  in  execution  of  a 
charity,from  which  they  conld  receive  no  private  remunera- 
tion. 

There  isyet  another  view  of  this  part  of  the  ca3e,  which 
deserves  the  most  weighty  consideration.  The  corporation 
was  expressly  created  for  the  purpose  of  distributing  in  per- 
petuity the  charitable  donations  of  private  benefactors. 
By  the  terms  of  the  charter  the  trustees,  and  their  suc- 
cessors in  their  corporate  capacity,  were  to  receive,  hold 
snd  exclusively  manage  all  the  funds  so  contributed.  The 
crown  then  upon  the  face  of  the  charter,  pledged  its  faith, 
that  the  donations  of  private  benefactors  should  be  perpetu- 
ally devoted  to  their  original  purposes  without  any  interfer- 
ence on  its  own  part  and  should  be  forever  administer- 
ed by  the  trustees  of  the  corporation,  unless  its  corpo- 
rate franchises  should  be  taken  away  by  due  process 
of  law — From  the  very  nature  of  the  case,  therefore, 
there  was  an  implied  contract  on  the  part  of  the  crown 
with  every  benefactor,  that  if  he  would  give  his  money, 
it  should  be  deemed  a  charity  protected  by  the  charter, 
and  be  administered  by  the  corporation  according  to  the 
general  law  of  the  land.  As  soon  then  as  a  donation  was 
made  to  the  corporation,  there  was  an  implied  contract 
springing  up  and  founded  on  a  valuable  consideration,  that 
the  crown  would  not  revoke  or  alter  the  charter  or  change 
its  administration  without  the  consent  of  the  corporation. 
There  was  also  an  implied  contract  between  the  corpora- 
tion itself  and  every  benefactor  upon  a  like  consideration, 
that  it  would  administer  his  bounty  according  to  the  terms 
and  for  the  objects  stipulated  in  (he  charter. 

In  every  view  of  the  case,  if  a  consideration  were  neces 
sary  (which  I  utterly  deny)  to  make  the  charter  a  valid  con- 
tract, a  valuable  consideration  did   exist,  as  to  the  founder, 
the  trustees  and  the  benefactors.     And  upon    the  soundest 
legal  principles  the  charter  maybe  properly  deemed,  accord- 


SUPREME  COURT,  UNITED  STATES.        359 

iftg  to  the  various  aspects,  in  which  it  is  viewed,  as  a  sever- 
al contract  with  each  of  these  parties,  in  virtue  of  the  found- 
ation, or  the  endowment  of  the  college,  or  the  acceptance 
of  the  charter,  or  the  donations  to  the  charity. 

And  here  we  might  pause;  but  there  is  yet  remaininganotb- 
er  view  of  the  subject,  which  cannot  consistently  be  passed 
over  without  notice.  It  seems  to  be  assumed  by  the  argu- 
ment of  the  defendants  counsel,  that  there  is  no  contract 
whatsoever,  in  the  virtue  of  the  charter,  between  the  crown 
and  the  corporation  itself.  But  it  deserves  consideration, 
whether  this  assumption  can  be  sustained  upon  a  solid  founds 
ation. 

If  this  had  been  a  new  charter  granted  to  an  existing  cor- 
poration, or  a  grant  of  lands  to  an  existing  corporation,  there 
could  not  have  been  a  doubt,  that  the  grant  would  have  been 
an  executed  contract  with  the  corporation  ;  as  much  so,  as 
if  it  had  been  to  any  private  person.  But  it  is  supposed, 
that  as  this  corporation  was  not  then  in  existence,  but  was 
created  and  its  franchises  bestowed,  uno  flatu,  the  charter 
cannot  be  construed  a  contract,  because  there  was  no  per- 
son in  rerum  natura,  with  whom  it  might  be  made.  Is  this 
however  a  just  and  legal  view  of  the  subject  ?  If  the  corpo- 
ration had  no  existence  so  as  to  become  a  contracting  party, 
neither  had  it  for  the  purpose  of  receiving  a  grant  of  the 
franchises.  The  truth  is,  that  there  may  be  a  priority  of  op- 
eration of  things  in  the  tame  grant ;  and  the  law  distinguish- 
es and  gives  such  priority,  wherever  it  is  necessary  to  ef- 
fectuate the  objects  of  the  granf(23).  From  the  nature  of 
things,  the  artificial  person  called  a  corporation  must  be 
created  before  it  can  be  capable  of  taking  any  thing.  When 
therefore  a  charter  is  granted,  and  it  brings  the  corporation 
into  existence  without  any  act  of  the  natural  persons,  who 
compose  it,  and  give3  such  corporation  any  privileges,  fran- 
ca) Cn3e  of  Sutton's  Hospital,  10  Co.  23. — HucklHiul  \^.  Fowclirr,  fit  r  ,1  in 
Co.  '27,  '28,  and  recognized  in  Attorney  Ceneral  v~.  I'.m-  \ .  r,  .>  V  <•■/  '  ■■. 
"U.-'io.Tgr.— b>    I'    Uijjhuiore  on  ,Moi>m.  JO",  b  i' 


36(1  DARTMOUTH  COLLEGE  VS.  WOODWAKU. 

chises  or  property,  the  law  deems  the  corporation  to  be  first 
brought  into  existence,  and  then  clothes  it  with  the  granted 
liberties  ami  property.  When,  on  the  other  hand,  the  cor- 
poration is  to  be  brought  into  existence  by  some  future  acts 
of  the  corporators,  the  franchises  remain  in  abeyance,  until 
such  acts  are  done,  and  when  the  corporation  is  brought  in- 
to life,  the  franchises  instantaneously  attach  to  it.  There 
may  be  in  intendment  of  law  a  priority  of  time  even  in  an 
instant  for  this  purpose (24).  And  if  the  corporation  have 
an  existence  before  the  grant  of  its  other  franchises  attaches, 
what  more  difficulty  is  there  in  deeming  the  grant  of  these 
franchises  a  contract  with  it,  than  if  granted  by  another  in- 
strument at  a  subsequent  period  ?  It  behoves  those  also, 
who  hold,  that  a  grant  to  a  corporation,  not  then  in  exis- 
tence, is  incapable  of  being  deemed  a  contract  on  that  ac- 
count, to  consider,  whether  they  do  not  at  the  same  time  es- 
tablish, that  the  grant  itself  is  a  nullity  for  precisely  the  same 
reason.  Yet  such  a  doctrine  would  strike  us  all  as  preg- 
nant with  absurdity,  since  it  would  prove  that  an  act  of  in- 
corporation could  never  confer  any  authorities,  or  rights  or 
property  on  the  corporation  it  created*  It  maybe  admitted 
that  two  parties  are  necessary  to  form  a  perfect  contract  ; 
but  it  is  denied  that  it  is  necessary,  that  the  assent  of  both 
parties  must  be  at  the  same  time.  If  the  legislature  were 
voluntarily  to  grant  land  in  fee  to  the  first  child  of  A.  to  be 
hereafter  born  ;  as  soon  as  such  child  should  be  born,  the 
estate  would  vest  in  it.  Would  it  be  contended,  that  such 
grant,  when  it  took  effect,  was  revocable,  and  not  an  execut- 
ed contract,  upon  the  acceptance  of  the  estate  1  The  same 
question  might  be  asked  in  a  case  of  a  gratuitous  grant  by 
the  king  or  the  legislature  to  A.  for  life,  and  afterwards  to 
the  heirs  of  B.,  who  is  then  living.  Take  the  case  of  a  bank, 
incorporated  for  a  limited  period  upon  the  express  condition, 
that  it  shall  pay  out  of  its  corporate  funds  a  certain  sum,  as 

'-2V'  lhi<i. 


SUPREME  COURT,  UNITED  STATES.         361 

*he  consideration  for  the  charter,  and  after  the  corporation 
is  organized  a  payment  duly  made  of  the  sum  out  of  the 
corporate  funds  ;  will  it  be  contended,  that  there  is  not  a 
subsisting  contract  between  the  government  and  the  corpo- 
ration by  the  matters  thus  arising  ex  post  facto,  that  the 
charter  sh;ill  not  be  revoked  during  the  stipulated  period? 
Suppose  an  act  declaring,  that  all  persons,  who  should  there- 
after  pay  info  the  publick  treasury  a  stipulated  sum,  should 
be  tenants  in  common  of  certain  lands  belongin:;;  to  the  state 
in  certain  proportions  ;  if  a  person,  afterwards  born,  pays 
the  stipulated  sum  into  the  treasury,  is  it  less  a  contract  with 
him,  than  it  would  be  with  a  person  in  esse  at  the  time  the 
act  passed ?  We  must  admit,  that  there  may  be  future 
springing  contracts  in  respect  to  persons  not  now  in  esse, 
or  we  shall  involve  ourselves  in  inextricable  difficulties. 
And  if  there  may  be  in  respect  to  natural  persons,  why  not 
also  in  respect  to  artificial  persons,  created  by  the  law  for 
the  very  purpose  of  being  clothed  with  corporate  powers? 
I  am  unable  to  distinguish  between  the  case  of  a  grant  of 
land,  or  of  franchises  to  an  existing  corporation,  and  a  like 
grant  to  a  corporation  brought  into  life  for  the  verj'  purpose 
of  receiving  the  grant.  As  soon  as  it  is  in  esse,  and  the 
franchises  and  property  become  vested  and  executed  in  it, 
the  grant  is  just  as  much  an  executed  contract,  as  if  its  pri- 
or existence  had  been  established  for  a  century. 

Supposing  however  that  in  either  of  the  views,  which  have 
been  suggested,  the  charter  of  Dartmouth  college  is  to  be 
deemed  a  contract,  we  are  yet  met  with  several  objections 
of  another  nature. 

It  is  in  the  first  place  contended,  that  it  is  not  a  contract 
within  the  prohibitory  clause  of  the  constitution,  because 
that  clause  was  never  intended  to  apply  to  mere  contracts 
of  civil  institution,  such  as  the  contracts  of  marriage,  or  to 
grants  of  power  to  state  officers,  or  to  contracts  relative  tit 
'heir  offices,  or  to  grants  of  (rusts  to  be  exercised  for  purpo- 
47 


362      DARTMOUTH  COLLEGE  VS.  WOODWARD. 

ses  merely  publick,  where  the  grantees  take  no  beneficial  in- 
terest. 

It  is  admitted,  that  the  state  legislatures  have  powers  to 
enlarge,  repeal  and  limit  the  authorities  of  publick  officers  in 
their  official  capacities  in  all  cases,  where  the  constitutions 
of  the  states  respectively  do  not  prohibit  them  ;  and  this, 
among  others,  for  the  very  reason,  that  there  is  no  express 
or  implied  contract,  that  they  shall  always  during  their  con- 
tinuance in  office  exercise  such  authorities.  They  are  to 
exercise  them  only  during  the  good  pleasure  of  the  legisla- 
ture. But  when  the  legislature  makes  a  contract  with  a 
publick  officer,  as  in  the  case  of  a  stipulated  salary  for  his 
services  during  a  limited  period,  this,  during  the  limited 
period,  is  just  as  much  a  contract  within  the  purview  of  the 
constitutional  prohibition,  as  a  like  contract  would  be  be- 
tween two  private  citizens.  Will  it  be  contended,  that  the 
legislature  of  a  state  can  diminish  the  salary  of  a  judge 
holding  his  office  during  good  behaviour?  Such  an  author- 
ity has  never  yet  been  asserted  to  our  knowledge.  It  may 
also  be  admitted,  that  corporations  for  mere  publick  govern- 
ment, such  as  towns,  cities  and  counties,  may  in  many  res- 
pects be  subject  to  legislative  controul.  But  it  will  hardly 
be  contended,  that  even  in  respect  to  such  corporations  the 
legislative  power  is  so  transcendant,  that  it  may  at  its  will 
take  away  the  private  property  of  the  corporation,  or 
change  the  uses  of  its  private  funds,  acquired  under  the  pub- 
lick faith.  Can  the  legislature  confiscate  to  its  own  use  the 
private  funds,  which  a  municipal  corporation  holds  under 
its  charter,  without  any  default  or  consent  of  the  corpora- 
tors ?  If  a  municipal  corporation  be  capable  of  holding  de- 
vises and  legacies  to  charitable  uses  (as  many  municipal 
corporations  are,)  does  the  legislature  under  our  forms  of 
limited  government  possess  the  authority  to  seize  upon  those 
funds,  and  appropriate  them  to  other  uses  at  its  own  arbitra- 
ry pleasure  against  the  will  of  the  donors  and  donees?  From 


SUPREME  COURT,  UNITED  STATES.  363 

the  very  nature  of  our  governments  the  publick  faith  is 
pledged  the  other  way;  and  that  pledge  constitutes  a  valid 
compact;  and  that  compact  is  subject  only  to  judicial  en- 
quiry, construction  and  abrogation.  This  court  have  al- 
ready had  occasion  in  other  causes  to  express  their  opinion 
on  this  subject;  and  there  is  not  the  slightest  inclination  to 
retract  it (25). 

As  to  the  case  of  the  contract  of  marriage,  which  the  ar- 
gument supposes  not  to  be  within  the  reach  of  the  prohibi- 
tory clause,  because  it  is  matter  of  civil  institution,  1  profess 
not  to  feel  the  weight  of  the  reason  assigned  for  the  excep- 
tion. In  a  legal  sense  all  contracts,  recognized  as  valid  in 
any  country,  may  be  properly  said  to  -be  matters  of  civil  in- 
stituiion,  since  they  obtain  their  obligation  and  construction 
jure  loci  contractus.  Titles  to  land  constituting  part  of  the 
publick  domain,  acquired  by  grants  under  the  provisions  of 
exis  ing  laws  by  private  persons,  are  certainly  contracts  of 
civil  institution.  Yet  no  one  ever  supposed,  that  when 
bona  fide  acquired,  they  were  not  beyond  the  reach  of  legis- 
lative revocation.  And  so  certainly  is  the  established  doc- 
trine of  this  court(20).  A  general  law  regulating  divorces 
from  the  contract  of  marriage,  like  a  law  regulating  remedies 
in  other  cases  of  breaches  of  contracts,  is  not  necessarily  a 
law  impairing  the  obligation  of  such  a  contract (27).  It 
may  be  the  only  effectual  mode  of  enforcing  the  obligations 
of  the  contract  on  both  sides.  A  law  punishing  a  breach  of 
a  contract  by  imposing  a  forfeiture  of  the  rights  acquired 
under  it,  or  dissolving  it,  because  the  mutual  obligations 
were  no  longer  observed,  is  in  no  correct  sense  a  law  im- 
pairing the  obligations  of  the  contract. — Could  a  law,  com- 
pelling a  speciOck  performance  by  giving  a  new  remedy,  be 
justly  deemed  an  excess  of  legislative  power?  Thus  far  the 
contract  of  marriage  has  been  considered   with  reference  to 

(23)Tprrett  vs.   Taylor,  0   Crancli   43 — Town    of  Paw  let  vs.    Clad.,  '.' 

branch  292. 
(V>)  Iljiil. 
f  27)  Sw  Ilolm'-s  '. s.  L;<r>.'inir.  3  John  O   /.';. 


364  DARTMOUTH  COLLEGE  VS.  WOODWARD. 

general  laws  regulating  divorces  upon  breaches  of  that  con? 
tract.    But  if  the  argument  means  to  assert,  that  the  legislar 
ture  has  power  to  dissolve  such  a  contract  without  any  breach 
on  either  side,  against  the  wishes  of  the  parlies,  and  withr 
out  any  judicial  enquiry  to  ascertain   a  breach,  I   certainly 
am  not  prepared  to  admit  such  a  power,  or  that  its  exercise 
would  not  intrench  upon  the  prohibition  of  the  constitution. 
If  under  the  faith  of  existing  laws  a  contract  of  marriage  be 
duly  solemnized,  or  a  marriage    settlement  be    made    (and 
marriage  is  always  in  law  a  valuable  consideration  for  a  con- 
tract) it  is  not  easy  to  perceive,  why  a  dissolution  of  its  ob- 
ligations   without  any  default  or  assent  of  the   parties    may 
not  as  well  fall  within  the  prohibition,  as  any  other  contract 
for  a  valuable  consideration.     A  man  has  just  as   good  a 
right  to  his  wife,  as  to  the  property  acquired  under  a   mar- 
riage-contract.    He  has  a  legal  right  to  her  society  and  her 
fortune  ;  and  to  devest  such  right  without  his  default  and 
against  his  will  would  be  as  flagrant  a  violation  of  the  princi- 
ples of  justice,  as  the  confiscation  of  his  own  estate.  I  leave 
this  case  however  to  be  settled,  when  it  shall  arise.     I  have 
gone  into  it,  because   it  was  urged  with  great    earnestness 
upon  us,  and  required  a  reply.     It  is  sufficient  now  to  say, 
that  as  at  present  advised,  the  argument,  derived  from  this 
source,  does  not  press  my  mind  with  any  new    and   insur- 
mountable difficulty. 

In  respect  also  to  grants  and  contracts,  it  would  be  far 
too  narrow  a  construction  of  the  constitution  to  limit  the 
prohibitory  clause  to  such  only,  where  the  parties  take  for 
their  own  private  benefit.  A  grant  to  a  private  trustee  for 
the  benefit  of  a  particular  cestui  que  trust,  or  for  any  spe- 
cial private  or  publick  charity,  cannot  be  the  less  a  contract, 
because  the  trustee  takes  nothing  for  his  own  benefit.  A 
grant  of  the  next  presentation  to  a  church  is  still  a  contract, 
although  it  limit  the  grantee  to  a  mere  right  of  nomination 
or  patronage (28 j.     The  fallacy  of  (he  argument  consists  in 

(28)2  111.  Cornrn.  £1- 


SUPREME  COURT,  UNITED  STATES,  36J 

assuming  the  very  ground  in  controversy.  It  is  not  admit- 
ted, that  a  contract  with  a  trustee  is  in  its  own  nature  revo- 
cable, whether  it  be  for  special  or  general  purposes,  for 
publick  charity  or  particular  beneficence.  A  private  dona- 
tion, vested  in  a  trustee  for  objects  of  a  general  nature,does 
not  thereby  become  a  publick  trust,  which  the  government 
may  at  its  pleasure  take  from  the  trustee,  and  administer 
in  its  own  way.  The  truth  is,  that  the  government  have  no 
power  to  revoke  a  grant,  even  of  its  own  funds,  when  given 
to  a  private  person,  or  a  corporation  for  special  usea.  It 
cannot  recal  its  own  endowments  granted  to  any  hospital,  or 
college,  or  city,  or  town,  for  the  use  of  such  corporation. 
The  only  authority  remaining  to  the  government  is  judicial, 
to  ascertain  the  validity  of  the  grant,  to  enforce  its  proper 
uses,  to  suppress  frauds,  and,  if  the  uses  are  charitable,  to 
secure  their  regular  administration  through  the  means  of 
equitable  tribunals  in  cases,  where  there  would  otherwise  be 
a  failure  of  justice. 

Another  objection  growing  out  of,  and  connected  with, 
that,  which  we  have  been  considering,  is,  that  no  grants  arc 
within  the  constitutional  prohibition,  except  such  as  respect 
property  in  the  strict  sense  of  the  term  ;  that  is  to  say,  ben- 
eficial interests  in  lands,  tenements  and  hereditaments,  &c. 
&c,  which  may  be  sold  by  the  grantees  for  their  own  bene- 
fit :  and  that  grants  of  franchises,  immunities,  and  aulhorities 
not  valuable  to  the  parties,  as  property,  are  excluded  from 
its  purview.  No  authority  has  been  cited  to  sustain  this 
distinction,  and  no  reason  is  perceived  to  justify  its  adoption. 
There  are  many  rights,  franchises  and  authorities,  which  are 
valuable  in  contemplation  of  law,  where  n.j  beneficial  intereit 
can  accrue  to  the  possessor.  A  grant  offhe  next  ••rescnta 
tion  to  a  church  limited  to  the  grantee  alone  ha-  '  u  alrea 
dy  mentioned.       A   power   01   appointment.  vod    in    a 

marriage-si't'iement  eifh' r   to  a  naif''  ;;er,    to  ap- 

point uses  infavof."    >'  •'  '•  .     •.  compensation, 


366  DARTMOUTH  COLLEGE  VS.  WOODWARD. 

■is  another  instance.  A  grant  of  lands  to  a  trustee  to  raise 
portions  or  pay  debts  is  in  law  a  valuable  grant  and  conveys 
a  legal  estate.  Even  a  power  given  by  will  to  executors  to 
sell  an  estate  for  payment  of  debts,  is  by  the  better  opinions 
an  authority  coupled  with  a  trust  and  capable  of  survivor- 
ship^^. Many  dignities  and  offices,  existing  at  common 
law,  are  merely  honourary  and  without  profit,  and  sometimes 
are  onerous.  Yet  a  grant  of  them  has  never  been  supposed 
the  less  a  contract  on  that  account.  In  respect  to  franchi- 
ses, whether  corporate  or  not,  which  include  a  pernancy  of 
profits,  such  as  a  right  of  fishery,  or  to  hold  a  ferry,  a  mar- 
ket, or  a  fair,  or  to  erect  a  turnpike,  bank,  or  bridge,  there 
is  no  pretence  to  say,  that  grants  of  them  are  not  within  the 
constitution.  Yet  they  may,  in  point  of  fact,  be  of  no  ex- 
changeable value  to  the  owners.  They  may  be  worthless 
in  the  market.  The  truth  however  is,  that  all  incorporeal 
hereditaments,  whether  they  be  immunities,  dignities,  offices 
or  franchises,  or  other  rights,  are  deemed  valuable  in  law. — 
The  owners  have  a  legal  estate  and  property  in  them  and 
legal  remedies  to  support  and  recover  them  in  case  of  any 
injury,  obstruction  or  disseizen  of  them.  Whenever  they 
are  the  subjects  of  a  contract  or  grant,  they  are  just  as  much 
within  the  reach  of  the  constitution,  as  any  other  grant. — 
Nor  is  there  any  solid  reason,  why  a  contract  for  the  ex- 
ercise of  a  mere  authority  should  not  be  just  as  much  guard- 
ed, as  a  contract  for  the  use  and  dominion  of  property .— 
Mere  naked  powers,  which  are  to  be  exercised  for  the  ex- 
clusive benefit  of  the  grantor,  are  revocable  by  him  for  that 
very  reason.  But  it  is  otherwise,  where  a  power  is  to  be 
exercised  in  aid  of  a  right  vested  in  the  grantee.  We  all 
know,  that  a  power  of  attorney,  forming  a  part  of  a  security 
upon  the  assignment  of  a  chose  in  action,  is  not  revocable  by 

(29)Co-  Lit- 113-  a.  Harg.  and  Butler's  note  2. — Sugden  on  Powers,  140. — 
Jackson  vs.  Jansen,  6  John.  R.  73. — Franklin  vs.  Osgood,  2  Johns.  Cas. 
a.S.C  14  Johns.  R.  527— Zebach  vs.  Smith,  3  Binn.  R.  69— Lessee 
of  Moody  vs.  Vandyke,  4  Bin.  R.  31.— Atty.  GenLv*  Gleg.  1  Atk- 
356— 1  Bat.  Abr.  586.  (Guillim  edit.) 


SUPREME  COURT,  UNITED  STATES.  36f 

ihe  grantor.  For  it  then  sounds  in  contract  and  is  coupled 
with  an  interest(30).  So  if  anestate  be  conveyed  in  trust 
for  the  grantor,  the  estate  is  irrevocable  in  the  grantee,  al- 
though he  can  take  no  beneficial  interest  for  himself.  Many 
of  the  best  settled  estates  stand  upon  conveyances  of  this 
nature  ;  and  there  can  be  no  doubf,  that  such  grants  are  con- 
tracts within  the  prohibition  in  question. 

In  respect  to  corporate  franchises,  they  are,  properly 
speaking,  legal  estates  vested  in  the  corporation  itself,  as 
soon  as  it  is  in  esse.  They  are  not  mere  naked  powers 
granted  to  the  corporation  ;  but  powers  coupled  with  an  in- 
terest. The  property  of  the  corporation  rests  upon  the  pos- 
session of  its  franchises  ;  and  whatever  may  be  thought  as  to 
the  corporators,  it  cannot  be  denied,  that  the  corporation  it- 
self has  a  legal  interest  in  them.  It  may  sue  and  be  sued 
for  them.  Nay  more,  this  very  right  is  one  of  its  ordinary 
franchises.  "  It  id  likewise  a  franchise,"  says  Mr.  Justice 
Biackstone,  "for  a  number  of  persons  to  be  incorporated 
<:  and  subsist  as  a  body  politick,  with  power  to  maintain 
"  perpetual  succession  and  do  other  corporate  acts  ;  and 
"  each  individual  member  of  such  corporation  is  also  said 
"  to  have  a  franchise  or  fieedom"(31).  In  order  to  get  rid 
of  the  legal  difficulty  of  these  franchises  being  considered 
as  valuable  hereditaments  or  property,  the  counsel  for  the 
defendant  are  driven  to  contend,  that  the  corporators  or 
trustees  are  mere  agents  of  the  corporation,  in  whom  no  ben- 
eficial interest  subsists  ;  and  so  nothing  but  a  naked  power 
is  touched  by  removing  them  from  the  trust ;  and  then  to 
hold  the  corporation  itself  a  mere  ideal  being,  capable  in 
deed  of  holding  property  or  franchises,  but  having  no  inter- 
est in  them,  which  can  be  the  subject  of  contract.  Neither 
of  these  positions  is  admissible.  The  former  lias  been  al 
readv  sufficiently  considered,  and  the  latter  may  be  dispos 

(30)  Walsh  vs.  Whitcomb,  2  F.sp.  U.  505. — Bi-rpf-n    \x.   BVnnett,  1    Cuir.cp 

Cas.  in  V.r.  1.  15. —  Itavinoinl  vn.  Squire,  1 1  .J«fni'=.  ft-    IT. 
(T.1)  3  HI.  Cnmm.  .V — l  ky«l  Uorp.  U.  !*• 


368  DARTMOUTH  COLLEGE  VS.  WOODWARD. 

ed  of  in  a  few  words.  The  corporators  are  not  mere  agents, 
but  have  vested  rights  in  their  character  as  corporators. 
The  right  to  be  a  freeman  of  a  corporation  is  a  valuable 
temporal  right.  It  is  a  right  of  voting  and  acting  in  the  cor- 
porale  concerns,  which  the  law  recognizes  and  enforces, 
and  for  a  violation  of  which  it  provides  a  remedy.  It  is 
founded  on  the  same  basis  as  the  right  of  voting  in  publick 
elections  ;  it  is  as  sacred  a  right ;  and  whatever  might  have 
been  the  prevalence  of  former  doubts,  since  the  time  of  lord 
Holt  such  aright  has  always  been  deemed  a  valuable  fran- 
chise or  privilege  (32). 

This  reasoning,  which  has  been  thus  far  urged,  applies 
with  full  force  to  the  case  of  Dartmouth  college.  The  fran- 
chises granted  by  the  charter  were  vested  in  the  trustees  in 
their  corporate  character.  The  lands  and  other  property, 
subsequently  acquired,  were  held  by  them  in  the  same  man- 
ner. They  were  the  private  demesnes  of  the  corporation, 
held  by  it,  not,  as  the  argument  supposes,  for  the  use  and 
benefit  of  the  people  of  New-Hampshire,  but,  as  the  char- 
ter itself  declares,  "for  the  use  of  Dartmouth  college." 
There  were  not,  and  in  the  nature  of  things,  could  not  be- 
any other  cestuis  que  use  entitled  to  claim  those  funds. 
They  were  indeed  to  be  devoted  to  the  promotion  of  piety 
and  learning,  not  at  large,  but  in  that  college,  and  the  estab- 
lishments connected  with  it  ;  and  the  mode,  in  which  the 
charity  was  to  be  applied,  and  the  objects  of  it  were  left 
solely  to  the  discretion  of  the  trustees,  who  were  the  legal 
governoursand  administrators  of  it.  No  particular  person 
in  New-Hampshire  possessed  a  vested  right  in  the  bounty; 
nor  could  he  force  himself  upon  the  trustees  as  a  proper  ob- 
ject. The  legislature  itself  could  not  deprive  the  trustees, 
of  the  corporate  funds,  or  annul  their  discretion  in  the  ap- 
plication of  them,  or  distribute  them  among  its  own  favour- 
ites.    Could  the  legislature  of  New-Hampshire  have  seized 

(3-2)  Ash  by  vs.  White,  2  Lord  Raym.  938 — 1  Kyd  Corp.  16. 


SUPREME  COUIIT,  UNITED  STATES.  369 

the  land  given  by  the  state  of  Vermont  to  the  corporation 
and  appropriated  it  to  uses,  distinct  from  those,  intended  by 
the  charity,  against  the  will  of  the  trustees?  This  question 
cannot  be  answered  in  the  affirmative,  until  it  is  established, 
that  the  same  legislature  may  lawfully  take  the  property  of 
A.  and  give  it  to  B.  and  if  it  could  not  take  away  the  cor- 
porate funds,  upon  what  pretence  can  it  take  away  or 
restrain  the  corporate  franchises  ?  Without  the  franchises, 
the  funds  could  not  be  used  for  corporate  purposes  ;  but 
without  the  funds,  the  possession  of  the  franchises  might  still 
be  of  inestimable  value  to  the  college  and  to  the  cause  of 
religion  and  learning. 

Thus  far  the  rights  of  the  corporation  itself  in  respect  to 
its  property  and  franchises  have  been  more  immediately 
considered.  But  there  are  other  rights  and  privileges  be- 
longing to  the  trustees  collectively  and  severally,  which  are 
deserving  of  notice.  They  are  entrusted  with  the  exclu- 
sive power  to  manage  the  funds,  to  choose  the  officers,  and 
to  regulate  the  corporate  concerns,  according  to  their  own 
discretion.  The  jus  patronatus  is  vested  in  them.  The 
visitatorial  power  in  its  most  enlarged  extent  also  belongs 
lo  them.  When  this  power  devolves  upon  the  founder  of 
a  charity,  it  is  an  hereditament,  descendible  in  perpetuity 
to  his  heirs,  and  in  default  of  heirs,  it  escheats  to  the  gov- 
ernments). It  is  a  valuable  right  founded  in  property,  as 
much  so,  as  the  right  of  patronage  in  any  other  case.  It  is 
a  right,  which  partakes  of  a  judicial  nature.  May  not  the 
founder  as  justly  contract  for  the  possession  of  this  right  in 
return  for  his  endowment,  as  for  any  other  equivalent? 
and,  if  instead  of  holding  it  as  an  hereditament,  he  assigns 
it  in  perpetuity  to  the  trustees,  of  the  corporation,  is  it  less 
a  valuable  hereditament  in  their  hands  ?  The  right  is  not 
merely  a  collective  right  in  all  the  trustees  ;  each  of  them 
ilso  has  a  franchise  in  it.     Lord  Holt  says,  "  it  is  agreeable 

Cr>)  Rex  vs-  St.  Catherine's  Hill.  4  T.  Rep.  233. 
■IP, 


370  DARTMOUTH  COLLEGE  VS.  WOODWARD. 

"  to  reason  and  the  rules  of  law,  that  a  franchise  should  be 
vested  in  the  corporation  aggregate  and  yet  the  benefit  re- 
"  dound  to  the  particular  members  and  be  enjoyed  by  them 
"  in  their  private  capacities.  Where  the  privilege  of  elec- 
"  tion  is  used  by  particular  persons  it  is  a  particular  right 
"  vested  in  each  particular  man"  (34).  Each  of  the  trus- 
tees had  a  right  to  vote  in  all  elections.  If  obstructed  in 
the  exercise  of  it,  the  law  furnished  him  with  an  adequate 
recompense  in  damages.  If  ousted  unlawfully  from  his  of- 
fice, the  law  would  by  a  mandamus,  compel  a  restoration. 

It  is  attempted,  however,  to  establish,  that  the  trustees 
have  no  interest  in  the  corporate  franchises,  because  it  is  said, 
that  they  may  be  witnesses  in  a  suit  brought  against  the  cor- 
poration. The  case  cited  at  the  bar  certainly  goes  the 
length  of  asserting,  that  in  a  suit  brought  against  a  charitable 
corporation  for  arecompence  for  services  performed  for  the 
corporation,  the  gorernours,  constituting  the  corporation,  (but 
whether  entrusted  with  its  funds  or  not  by  the  act  of  in- 
corporation does  not  appear)  are  competent  witnesses  against 
the  plaintiff(35).  But  assuming  this  case  to  have  been 
rightly  decided,  (as  to  which  upon  the  authorities  there 
may  be  room  to  doubt,)  the  corporators  being  technically  par- 
ties to  the  record(36)  it  does  not  establish  that  in  a  suit  for 
the  corporate  property  vested  in  the  trustees  in  their  corpo- 
rate capacity,  the  trustees  are  competent  witnesses.  At  all 
events,  it  does  not  establish,  that  in  a  suit  for  the  corporate 
franchises  to  be  exercised  by  the  trustees,  oi»to  enforce  their 
visitatorial  power,  the  trustees  would  be  competent  witness- 
es. On  a  mandamus  to  restore  a  trustee  to  his  corporate  or 
visitatorial  power,  it  will  not  be  contended,  that  the  trustee 
is  himself  a  competent   witness   to  establish  his  own  rights 

(34)  Ashbv  vs.  White,  2  Ld.  Raym.  938.  952 — Att'y  Gen.  vs.  Dixie,  IS 
Vez.519. 

(35)  Woller  vs.  the  Govemour  of  the  Foundling  Hospital,  Peake.  N.  P 
Rep.  153. 

(3C)  Attorney  General  vs.  City  of  London,  &c.  3  Bro.  Ch.  c.  171.  S.  C — 
I  Vez. jr. -24'. — Burton  vs.  Hinde,  5  T.  R.  174. — Nason vs.T hatcher,  7. 
Mass.  R.  398. — Phillips  on  Evid.  42.  52.  57-  and  notes. — 1  Kyd  Corp 
f>( ---i?  Ste-. — Highiuorc  oa  Morton,  514. 


SUPREME  COURT,  UNITED  STATES.  37 1 

er  the  corporate  rights.  Yet  why  not,  if  the  law  deems^ 
that  a  trustee  has  no  interest  in  the  franchise  ?  The  test  of 
interest,  assumed  in  the  argument,  proves  nothing  in  this  case. 
It  is  not  enough  to  establish,  that  the  trustees  are  sometimes 
competent  witnesses,  it  is  necessary  to  shew,  that  they  are 
always  so  in  respect  to  the  corporate  franchises  and  their 
own.  It  will  not  be  pretended,  that  in  a  suit  for  damages 
for  obstruction  in  the  exercise  of  his  official  powers,  a  trus- 
tee is  a  disinterested  witness.  Such  an  obstruction  is  not  a 
damnum  absque  injuria.  Each  trustee  has  a  vested  right  and 
legal  interest  in  his  office,  and  it  cannot  be  devested  but  by 
due  course  of  law.  The  illustration  therefore  lends  no  new 
force  to  the  argument,  for  it  does  not  establish,  that  when 
their  own  rig!;>'<  <  in  controversy,  the  trustees  have  no  le- 
gal interest  in  their  offices. 

The  principal  objections  having  been  thuB  answered, satis- 
factorily at  least  to  my  own  mind,  it  remains  only  to  declare 
that  my  opinion  after  the  most  mature  deliberation  is,  that 
the  charter  of  Dartmouth  College,  granted  in  1769,  is  a  con- 
tract within  the  purview  of  the  constitutional  prohibition. 

I  might  now  proceed  to  the  discussion  of  the  second  ques- 
tion ;  but  it  is  necessary  previously  to  dispose  of  a  doctrine, 
which  has  been  very  seriously  urged  at  the  bar,  viz.  that 
the  charter  of  Dartmouth  College  was  dissolved  at  the  revo- 
lution, and  is  therefore  a  mere  nullity.  A  case  before  lord 
Thurlow  has  been  cited  in  support  of  this  doctrine(37). — 
The  principal  question  in  that  case  was  whether  the  corpo- 
ration of  William  &  Mary's  College  in  Virginia,  (which  had 
received  its  charter  from  king  William  and  Queen  Mary) 
should  still  be  permitted  to  administer  the  charity  under  Mr. 
Boyle's  will,  no  interest  having  passed  to  the  college  under 
thr*  will,  but  it  acting  as  an  agent  or  trustee  under  a  decree 
in  chancery,  or  whether  a  new  scheme  for  the  administra- 
tion of  the  charity,  should  be  laid  before  the  court.     Lord 

(r>7)  Attorney  (General  v*.  City  of  London*  3  Bro.  C!i-C>171.S.C — 1Wz.jp 


UTZ  DARTMOUTH  COLLEGE  VS.  WOODWARD. 

Thurlow  directed  a  new  scheme  because  the  college  belong- 
ing to  an  individual  government,  was  no  longer  within  the 
reach  of  the  court.  And  he  very  unnecessarily  added,  that 
he  could  not  now  consider  the  college  as  a  corporation,  or 
as  another  report  (38)  states,  that  he  could  not  take  no- 
tice of  it  as  a  corporation,  it  not  having  proved  its  exist- 
ence as  a  corporation  at  all.  If  by  this  Lord  Thurlow  meant 
to  declare,  that  all  charters  acquired  in  America  from  the 
crown  were  destroyed  by  the  revolution,  his  doctrine  is  not 
law  ;  and  if  it  had  been  true,  it  would  equally  apply  to  all 
other  grants  from  the  crown,  which  would  be  monstrous.  It 
is  a  principle  of  the  common  law  which  has  been  recognized 
as  well  in  this  as  in  other  courts,  that  the  division  of  an  em- 
pire works  no  forfeiture  of  previously  vested  rights  of  prop- 
erty. And  this  maxim  is  equally  consonant  with  the  com- 
mon sense  of  mankind  and  the  maxims  of  eternal  justice(39). 
This  objection  therefore  may  be  safely  dismissed  without 
further  comment. 

The  remaining  inquiry  is,  whether  the  acts  of  the  legisla- 
ture of  New-Hampshire  now  in  question,  or  any  of  them, 
impair  the  obligations  of  the  charter  of  Dartmouth  College. 
The  attempt  certainly  is  to  force  upon  the  corporation  anew 
charter  against  the  will  of  the  corporators.  Nothing  seems 
better  settled  at  the  common  law  than  the  doctrine,  that  the 
crown  cannot  force  upon  a  private  corporation  a  new  char- 
ter ;  or  compel  the  old  members  to  give  up  their  own  fran- 
chises, or  to  admit  new  members  into  the  corporation (40). 
Neither  can  the  crown  compel  a  man  to  become  a  member 
of  such  corporation  against  his  will(41).  As  little  has  it 
been  supposed,  that  under  our  limited  governments  the  leg- 
islature possessed  such  transcendant  authority.     On  oneoc- 

(38)  1  Vez.jr.  243. 

(39)  Terrett  vs.  Taylor,  9  Cranch  43. 50. — Kelly  vs.  Harrison,  2  Johns.  cas„ 
29. — Jackson  vs.  Lunu.  3  Johns,  cas.  109 — Calvin's  case,  7  Co.  2". 

f4Q)  Rex  vs.  Vice  Chancellor  of  Cambridge,  3  Bur.lf>56. — Hex  vs.Passmore 

3T.  Rep.  2i0 — I   Kvd  Corp.  65— Rex  vs.  Larwood,  Comb.  31fi. 
'.W  Rex  vs.  Dr.  Askew,  4  Burr.  i.200 


SUPREME  COURT,  UNITED  STATES.        U73 

casion  a  very  able  court  held,  that  the  slate  legislature  had 
no  authority  to  compel  a  person  to  become  a  member  of  a 
mere  private  corporation  created  for  the  promotion  of  a  pri- 
vate enterprize,  because  every  man  had  a  right  to  refuse  a 
grant(42).  On  another  occasion  the  same  learned  court 
declared,  that  they  were  all  satisfied,  that  the  rights  legally 
vested  in  a  corporation,  cannot  be  controuled  or  destroyed 
by  any  subsequent  statute,  unless  a  power  for  thai  purpose 
be  reserved  to  the  legislature  in  the  act  of  incorporation 
(43).  These  principles  are  so  consonant  with  justice,  sound 
policy  and  legal  reasoning,  that  it  is  difficul  to  resist  the  im- 
pression of  their  perfect  correctness.  The  application  of 
them  however  does  not,  from  our  limited  authority,  proper- 
ly belong  to  the  appellate  jurisdiction  of  this  court  in  this 
case. 

A  very  summary  examination  of  the  acts  of  New-Hamp- 
shire will  abundantly  shew,  that  in  many  material  respects 
they  change  the  charter  of  Dartmouth  College.  The  act 
of  the  27th  of  June  1816,  declares  that  the  corporation 
known  by  the  name  of  the  Trustees  of  Dartmouth  College 
shall  be  called  the  Trustees  of  Dartmouth  University. 
That  the  whole  number  of  trustees  shall  be  twen!y-ont,  a 
majority  of  whom  shall  form  a  quorum — that  they  and  their 
successors  shall  hold,  use  and  enjoy  forever  all  the  powers, 
authorities,  rights,  property,  liberties,  privileges,  and  immu- 
nities, heretofore  held,  &c.  by  the  trustees  of  Dartmouth, 
College,  except  where  the  act  otherwise  provides; — that 
they  shall  also  have  power  to  determine  the  times  and  place* 
of  their  meetings  and  manner  of  notifying  the  same;  to  or- 
ganize colleges  in  the  university;  to  establish  an  institute, 
and  elect  fellows  and  members  thereof  ;  to  appoint  and  dis- 
place officers,  and  determine  their  duties  and  compensation; 
to  delegate  the  power  of  supplying  vacancies  in   any  of  the 

(42)  Ellis  ts.  Marshall,  0  Mass.  Rip.  269- 
(43J  Wales  vs.Stetaou,  2  Mass.  Rep.  143.  1  if, 


374  DARTMOUTH  COLLBGE  VS.  WOODWAM). 

offices  of  the  university  for  a  limited  terra  ;  to  pass  •rdi- 
nances  for  the  government  of  the  students  ;  to  prescribe  the 
course  of  education  ;  and  to  arrange,  invest  and  employ  the 
funds  of  the  university.  The  act  then  provides  for  the 
appointment  of  a  board  of  twenty-five  overseers,  fifteen  of 
whom  shall  form  a  quorum,  of  whom  five  are  to  be  such  ex 
officio,  and  the  residue  of  the  overseers  as  well  as  the  new 
trustees  are  to  be  appointed  by  thegovernour  and  council. 
The  board  of  overseers  are  among  other  things  to  have 
power,  "  to  inspect  and  confirm,  or  disapprove  and  nega- 
"  tive,  such  votes  and  proceedings  of  the  board  of  trustees, 
"  as  shall  relate  to  the  appointment  and  removal  of  presi- 
"  dent,  professors  and  other  permanent  officers  of  the  uni- 
"  versity,  and  determine  their  salaries ;  to  the  establish- 
**  ment  of  colleges  and  professorships,  and  the  erection  of 
"  new  college  buildings.'*  The  act  then  provides,  that  ths 
president  and  professors  shall  be  nominated  by  the  trustees 
and  appointed  by  the  overseers,  and  shall  be  liable  to  be 
suspended  and  removed  in  the  same  manner  ;  and  that  each 
of  the  two  boards  of  trustees  and  overseers  shall  have  pow- 
er to  suspend  and  remove  any  member  of  their  respective 
boards.  The  supplementary  act  of  the  18th  of  December, 
1816,  declares  that  nine  trustees  shall  form  a  quorum,  and 
that  six  votes  at  least  shall  be  necessary  for  the  passage  of 
any  act  or  resolution.  The  act  of  the  26th  of  December. 
1816,  contains  other  provisions,  not  very  material  to  the 
question  before  us; 

From  this  short  analysis  it  is  apparent,  that  in  substance 
a  new  corporation  is  created  including  the  old  corporators, 
with  new  powers  and  subject  to  a  new  controul ;  or  that  the 
old  corporation  is  newly  organized  and  enlarged  and  placed 
under  an  authority  hitherto  unknown  to  it.  The  board  of 
trustees  are  increased  from  twelve  to  twenty-one.  The 
college  becomes  a  university.  The  property  vested  in  the 
old  trustees  is  transferred  to  the  new  board  of  trustee?  in 


SUTOHMB  COURT,  UNITED  STATES;  375 

their  corporate  capacities.  The  quorum  is  no  longer  sevent 
but  nine.  The  old  trustees  have  no  longer  the  sole  right 
to  perpetuate  their  succession  by  electing  other  trustees, 
but  the  nine  new  trustees  are  in  the  first  instance  to  be  ap- 
pointed by  the  governour  and  council,  and  the  new  board 
are  then  to  elect  other  trustees  from  time  to  time  as  vacan- 
cies occur.  The  new  board,  too,  have  the  power  to  sus- 
pend or  remove  any  member,  so  that  a  minority  of  the  old 
board,  co-operating  with  the  new  trustees,  possess  the  un- 
limited power  to  remove  the  majority  of  the  old  board. 
The  powers,  too,  of  the  corporation  are  varied.  It  has  au- 
thority to  organize  new  colleges  in  "  the  university  and  to 
"  establish  an  institute  and  elect  fellows  and  members 
u  thereof." — A  board  of  overseers  is  created,  (a  board  ut- 
terly unknown  to  the  old  charter)  and  is  invested  with  a 
general  supervision  and  negative  upon  all  the  most  impor- 
tant acts  and  proceedings  of  the  trustees.  And  to  give  com- 
plete effect  to  this  new  authority,  instead  of  the  right  to  ap- 
point, the  trustees  are  in  future  only  to  nominate,  and  the 
overseers  are  to  approve,  the  president  and  professors  of  the 
University. 

If  these  are  not  essential  changes,  impairing  the  rights  and 
authorities  of  the  trustees  and  vitally  affecting  the  interests 
and  organization  of  Dartmouth  College  under  its  old  charter, 
it  is  difficult  to  conceive,  what  acts,  short  of  an  uncondition- 
al repeal  of  the  charter,  could  have  that  effect.  If  a  grant 
of  land  or  franchises  be  made  to  A.  in  trust  for  special  pur- 
poses, can  the  grant  be  revoked,  and  a  new  grant  thereof 
be  made  to  A.  B.  and  C.  in  trust  for  the  same  purposes, 
without  violating  the  obligation  of  the  first  grant  ?  If  prop- 
erty be  vested  by  grant  in  A  .and  B.  for  the  use  of  a  college, 
or  a  hospital,  of  private  foundation,  is  not  the  obligation  of 
that  tyrant  impaired,  when  the  estate  is  taken  from  their  ex- 
clusive management  and  vested  in  them  in  common  with  ten 
othtr  persons  ?  If  a  power   of  appointment  be   given  to  A. 


376  DARTMOUTH  COLLEGE  VS.  WOODWARD. 

and  B.  is  it  no  violation  of  their  right,  to  annul  the  appoint- 
ment, unless  it  be  assented  to  by  five  other  persons,  and  then 
confirmed  by  a  distinct  body  ?  If  a  bank,  or  insurance  com- 
pany by  the  terms  of  its  charter  be  under  the  management 
of  directors,  elected  by  the  stockhoIders,wou!d  not  the  rights 
acquired  by  the  charter  be  impaired,  if  the  legislature  should 
take  the  right  of  election  from  the  stockholders  and  appoint 
directors  unconnected  with  the  corporation  ?  These  ques- 
tions carry  their  own  answers  along  with  them.  The  com- 
mon sense  of  mankind  will  teach  us,  that  all  these  cases 
would  be  direct  infringements  of  the  legal  obligations  of  the 
grants,  to  which  they  refer  ;  and  yet  they  are  with  no  es- 
sential distinction,  the  same  as  the  case  now  at  the  bar. 

In  my  judgment  it  is  perfectly  clear,  that  any  act  of  a  leg- 
islature, which  takes  away  any  powers  or  franchises  vested 
by  its  charter  in  a  private  corporation  or  its  corporate  offi- 
cers, or  which  restrains  or  controuls  the  legitimate  exercise 
of  them,  or  transfers  them  to  other  persons,  without  its  as- 
sent, is  a  violation  of  the  obligations  of  that  charter.  If  the 
legislature  mean  to  claim  such  an  authority,  it  must  be  re- 
served in  the  grant.  The  charter  of  Dartmouth  College 
contains  no  such  reservation  ;  and  I  am  therefore  bound  to 
declare,  that  the  acts  of  the  legislature  of  New-Hampshire 
now  in  question,  do  impair  the  obligations  of  that  charter, 
and  are  consequently  unconstitutional  and  void. 

In  pronouncing  this  judgment,  it  has  not  for  one  moment 
escaped  me,  how  delicate,  difficult  and  ungracious  is  the 
task  devolved  upon  us.  The  predicament  in  which  this 
court  stands  in  relation  to  the  nation  at  large,  is  full  of  per- 
plexities and  embarrassments.  It  is  called  to  decide  on 
causes  between  citizens  of  different  states,  between  a  state 
and  its  citizens,  and  between  different  states.  It  stands 
therefore  in  the  midst  of  the  jealousies  and  rivalries  of  con- 
flicting parties,  with  the  most  momentous  interests  confided 
to  its  care.     Under  such  circumstances,    it  never  can  have 


SUPREME  COURT,  UNITED  STATES,  377 

a  motive  to  do  more  than  its  duly;  and,  I  trust,   it  will  al- 
ways be  found  to  possess  firmness  enough  to  do  that. 

Under  these  impressions  I  have  pondered  on  the  case 
before  us  with  the  most  anxious  deliberation.  I  entertain 
great  respect  for  the  legislature,  whose  acts  are  in  ques- 
tion. I  entertain  no  less  respect  for  the  enlightened  tribu- 
nal whose  decision  we  are  called  upon  to  review.  In  the 
examination  I  have  endeavoured  to  keep  my  steps  super 
aatiquas  vias  of  the  law  under  the  guidance  of  authority 
and  principle.  It  is  not  for  judges  to  listen  to  the  voice  of 
persuasive  eloquence  or  popular  appeal.  We  have  nothing 
to  do  but  to  pronounce  the  law  as  we  find  it  ;  and  having 
done  this,  our  justification  must  be  left  to  the  impartial  judg- 
ment of  our  country. 

Mr.  Justice  Dcvall  dissented.-— 


After  the  opinions  had  been  pronounced,  upon   the  sug 
gestion  of  the  plaintiffs'  counsel  that  the  defendant  had  died 
since  the  last  term,  the   court  ordered  the  judgment  to   be 
entered  as  of  that  term,  as  follows. — 

This  cause  came  on  to  be  heard  on  the  transcript  of  the 
record  ;  and  was  argued  by  counsel  and  thereupon  all  and 
singular  the  premises  being  seen  and  by  the  court  now  here 
fully  understood,  and  mature  deliberation  being  thereupon 
had,  it  appears  to  this  court,  that  the  said  acts  of  the  legis- 
lature of  New-Hampshire,  of  the  twenty-seventh  of  June 
and  of  (he  eighteenth  and  twenty-sixth  of  December,  Anno 
Domini  181G,  in  the  record  mentioned,  are  repugnant  to  the 
constitution  of  the  United  States,  and  so  not  valid;  and, 
therefore,  that  the  said  superior  court  of  judicature  of  the 
state  of  New-Hampshire  erred  in  rendering  judgment  on  the 
p?c\  d  verdict  in  favour  of  the  said  Woodward,  that  he 
snou'.i.'  H  ;  his  (  is's  against  the  said  plaintiffs  ;  and  that 

the  said  court  ought  tu  have  rendered  judgment  thereon  that 
4<» 


^8     DARTMOUTH  COLLEGE  VS.  WOODWARD,  &c. 

the  said  trustees  recover  against  the  said  Woodward,  (he 
amount  of  damages  found  and  assessed  in  and  by  the  verdict 
aforesaid,  viz.  the  sum  of  twenty  thousand  dollars  :  Where- 
upon it  is  considered,  ordered  and  adjudged  by  this  court 
now  here,  that  the  aforesaid  judgment  of  the  said  superior 
court  of  judicature  of  the  state  of  New-Hampshire  be,  and 
the  same  hereby  is,  reversed  and  annulled  :  And  this  court 
proceeding  to  render  such  judgment  in  the  premises  as  the 
said  superior  court  of  judicature  ought  to  have  rendered,  it 
is  further  considered  by  this  court  now  here,  that  the  said 
trustees  of  Dartmouth  college  do  recover  against  the  said 
William  H.  Woodward  the  aforesaid  sum  of  twenty  thou- 
sand dollars,  with  costs  of  suit  :  and  it  is  by  this  court  now 
here  further  ordered,  that  a  special  mandate  do  go  from  this 
court  to  the  said  superior  court  of  judicature  to  carry  thifc 
judgment  into  execution. 


APPENDIX  No.  I. 


AT  an  annual  meeting  of  the  Trustees  of  Dartmouth  Col- 
lege, holden  the  28f/i  day  of  August  Anno  Domini, 
1816— Present, 

Ret.  FRANCIS  BROWN,  President, 
Ho>\  NATHANIEL  NILES, 
Hoy.  THOMAS  W.  THOMPSON, 
Hon.  TIMOTHY  FARRAR, 
Hoy.  ELIJAH  PAINE,  LL.D. 
Hox.  CHARLES  MARSH, 
Rev.  ASA  M'FARLAND,  D-D. 
Rev-  JOHN  SMITH, 
R*v.  SETH   PAYSON,  D.D. 

The  trustees  of  Dartmouth  College  have  been  informed, 
through  the  publick  newspapers,  that  the  legislature  of 
New-Hampshire,  at  their  last  June  icssion,  passed  an  act 
in  the  following  words  viz.      [Here  the  act  is  recited.] 

The  trustees  deem  it  their  duty  to  place  on  their  records 
the  following  facts. 

At  the  session  of  the  legislature  of  the  state,  holden  in 
June,  A.  D.  181.0,  Doctor  John  Wheelock,  the  then  Pres- 
ident of  the  College,  presented  a  memorial  to  that  body,  in 
which  he  charged  a  majority  of  the  trustees  of  the  college 
with  gross  misbehavior  in  office. 

Doctor  Wheelock's  memorial  was  committed  to  a  joint 
committee  of  both  branches  of  the  legislature,  and  he  was 
fully  heard  before  the  committee  ex  parte,  neither  the  trus- 
tees nor  the  members  then  present  being  notified  or  heard. 


380  APPENDIX. 

The  legislature  thereupon,  appointed  the  Honourable 
Daniel  A.  White,  Hon.  Nathaniel  A.  Haven,  and  Rever- 
end Ephraim  P.  Bradford,  a  committee  to  repair  to  the  col- 
ege  and  investigate  facts  and  report  thereon.  The  said 
committee  did,  in  August  following,  meet  at  the  college, 
heard  both  Doctor  Wheelock  in  support  of  his  charges 
against  the  trustees,  and  the  trustees  in  their  defence,  and 
at  the  session  of  the  legislature  in  June  last  made  their  re- 
port, which  has  been  published. 

The  report  of  facts  made  by  Messrs.  White,  Haven,  and 
Bradford,  was  committed  to  a  joint  committee  of  both  bran- 
ches and  this  last  committee  in  their  report,  expressly  de- 
cline considering  the  report  of  facts  as  the  proper  ground 
upon  which  the  legislature  ought  to  proceed  in  relation  to 
the  college. 

The  trustees  were  not  notified  at  any  stage  of  the  proceed- 
ings to  appear  by  themselves,  or  agent  before  the  legislature 
and  answer  the  charges  exhibited  against  them  by  the  said 
Wheelock. 

Thomas  W.  Thompson,  Elijah  Paine,  and  Asa  M'Far- 
land,  three  of  the  trustees  implicated,  attended  the  legisla- 
ture in  June  last,  and  respectfully  petitioned  for  the  privi- 
lege of  being  heard  on  the  floor  of  the  house  (a  privilege 
seldom  denied  to  parties  in  interest)  in  behalf  of  themselves 
and  the  other  trustees  ;  but  were  refused. 

During  the  same  session,  the  said  Thompson,  Paine,  and 
M'Farland  presented  to  the  legislature  a  remonstrance(l) 
against  the  passage  of  the  bill  relating  to  the  college,  then 
pending. 

And  afterwards  on  the  24(b  day  of  June,  the  said  Thomp- 
son and  M'Farland  presented  to  the  legislature  another  re- 
monstrance^) against  the  passage  of  the  act  now  under  con- 
sideration. 

Both  remonstrances  were  read  and  laid  on  the  table- 

(  1 )  S>jc  note  fa)  at  the  end  of  Appendix  No.  I. 
(2)  See  note  (bjj  a*  the  end  of  Appendix  No.  I. 


APPENDIX.  381 

No  facts  were  proved  to  the  legislature  and  no  report  of 
facts  of  any  legislative  committee  was  made,  to  show  that  the 
state  of  things  at  the  college  rendered  any  legislative  interfer- 
ence necessary. 

The  act  passed  by  small  majorities  in  the  house  of  Rep- 
resentatives^) and  the  Senate. 

The  trustees  forbear  to  make  any  comment  on  the  forego- 
ing facts. 

They  consider  themselves  under  a  high  responsibility  to 
their  fellow  citizens  and  to  the  benefactors  of  the  college,  to 
pursue  that  course  in  relation  to  the  said  act,  and  the  facts 
stated,  which  will  p-<«  e  ultimately  most  beneficial  to  the 
present  and  succeeding  generations.  They  are  very  sensible 
of  their  own  liability  to  err.  Nor  do  they  believe  that  legis- 
lative majorities  are  exempt  from  the  same  imperfection. 
Compelled  as  they  are  by  the  necessity  of  the  case  to  ac- 
cept or  refuse  the  provisions  of  the  said  act,  they  cannot 
avoid  deciding  the  question. 

They  find  the  law  fully  settled  and  recognized  in  almost 
every  case  which  has  arisen,  wherein  a  corporation  or  any 
member  or  officer  is  a  party,  that  no  man,  or  body  of  men 
is  bound  to  accept,  or  act  under  any  grant  or  gift  of  corpo- 
rate powers  and  privileges;  and  that  no  existing  corporation 
is  bound  to  accept,  but  may  decline  or  refuse  to  accept  any 
act  or  grant  conferring  any  additional  powers  or  privileges, 
or  making  any  restriction  or  limitation  of  those  they  already 
possess ;  and  in  case  a  grant  is  made  to  individuals,  or  to  a 
corporation  without  application,  it  is  to  be  regarded  not  as 
an  act  obligatory  or  binding  upon  them,  but  as  an  ofFer  or 
prn-^-  ...un  to  confer  such  powers  and  privileges  ;  or  the  ex- 
pression of  a  desire  to  have  them  accept  such  restrictions, 
which  they  are  at  liberty  to  accept  or  reject. 

The  trustees  apprehend  from  the  course  taken  by  the 
legislature,  that  an  opinion  prevails  that  the  said  act  h  con 

(  >)  Si-c  Apjiendix  \o-  f! 


382  APPENDIX. 

stitutionally  binding  upon  them,  whether  they  accept  its 
provisions  or  not ;  and  that  the  gentlemen  appointed  as 
trustees  under  the  act  are  constitutionally  vested  by  it, 
with  the  rights  and  privileges  granted  by  the  charter  of 
1769.  Against  this  opinion  they  observe,  that  by  the  char- 
ter of  1769,  the  trustees  of  Dartmouth  College,  in  the  lan- 
guage of  the  law,  "  by  incorporation  acquired  jus  persona 
and  became  persona  politica,  and  capable  of  all  civil 
rights,"  and  were  rendered  capable  of  holding  real  and  per- 
sonal estate,  and  of  enjoying  the  rights  and  privileges  recit- 
ed in  the  said  charter.  In  the  same  charter  it  is  declared 
that  "  the  whole  number  of  trustees  shall  forever  thereafter 
consist  of  twelve  and  no  more,"  and  that  the  said  trustees 
and  their  successors,  so  often  as  any  one  or  more  of  the  said 
trustees  shall  die,  &c.  shall  elect  and  appoint  such  trustee 
or  trustees  as  shall  supply  the  place  of  him  or  them  so  dy- 
ing, &c. 

Here  then  was  a  grant  of  powers  and  privileges  made  on 
the  part  of  government  to  the  twelve  persons  named  in  the 
charter  and  their  successors,  which  was  accepted  upon  the 
part  of  the  trustees.  The  rights  and  privileges  thus  grant- 
ed, became  vested.  Every  thing  was  done  which  could  be 
done  by  the  government  to  clothe  the  grantees  with  the 
powers,  privileges,  and  immunities  of  an  incorporation  ;  and 
among  others  the  powers  and  privileges  of  acquiring  and 
holding  property,  and  of  perpetuating  its  own  existence,  by 
a  successive  election  of  members,  for  the  security  and  con- 
tinuance of  those  powers  and  privileges  in  their  successors; 
and  for  the  application  of  such  property  as  they  might  ac- 
quire to  the  purposes  and  objects  for  which  they  were  in- 
corporated; all  property  which  they  have  acquired  by  pur- 
chase or  donation  has  become  vested  in  them  in  trust,  that 
its  avails,  shall  be  applied  to  the  objects  for  which  it  was 
purchased  or  given  agreeably  to  the  principles  of  their 
charter. 


APPENDIX.  383 

The  trustees  having,  by  the  charter,  become  a  body  pol- 
itick, a  person  known  in  law,  they  cannot,  without  a  viola- 
tion of  the  constitution  of  this  state,  "  be  despoiled  or  de- 
prived of  their  property,  immunities  or  privileges,  or  put 
out  of  the  protection  of  the  law,  but  by  the  judgment  of  their 
peers,  or  the  law  of  the  land."  And  as  a  person  known  in 
law,  they  are  constitutionally  entitled,  in  common  with  their 
fellow  citizens,  to  atrial  by  jury,  when  any  matter  is  alleg- 
ed against  them  as  cause  of  forfeiture  of  their  property, 
powers,  rights,  privileges,  or  immunities. 

This  grant  having  been  made  by  the  charter  of  1769,  and 
accepted  by  the  trustees  named  in  the  instrument,  it  be- 
comes a  contract,  and  irrevocable  on  the  part  of  the  govern- 
ment in  its  very  nature,  so  long  as  its  terms  are  complied 
with.  It  may  be  surrendered  or  forfeited.  If  forfeited,  a 
judicial  enquiry  must  be  had,  according  to  the  constitution 
and  laws  of  the  state.  It  is  not  competent  for  the  legisla- 
ture to  decide  the  question  of  forfeiture.  The  constitution 
forbids  it,  and  refers  it  to  the  judicial  department  of  govern- 
ment. 

Any  act  of  the  legislature,  altering  or  impairing  the  con- 
tract without  the  consent  of  the  trustees,  must,  we  ap- 
prehend, be  considered  by  the  judicial  tribunal  a  violation 
of  the  10th  section  of  the  first  article  of  the  constitution  of 
the  United  States,  which  declares,  "  No  state  shall  make 
any  law  impairing  the  obligation  of  contracts." 

The  said  act  of  the  legislature,  which  passed  without  the 
consent  of  the  trustees,  is  intended  to  enlarge  the  number 
of  their  body  from  the  charter  number  of  twelve  to  that  of 
twenty-one,  and  contrary  to  the  provisions  of  the  charter 
gives  the  appointment  of  the  nine  additional  trustees  to  the 
governour  and  council,  and  also  gives  to  the  governour  and 
council  the  power  to  fill  all  vacancies  that  may  occur  pre- 
vious to  or  during  the  first  meeting  of  the  said  board  of 
trustees;  and  declares,  that  the  trustees,  as  constituted  by 
riaid  act,  shall  hold,  use,  excrcixc,  and  enjoy  all  the  powers, 


384  APPENDIX. 

authorities,  rights,  property,  &c.  which  have  hitherto  been 
possessed,  enjoyed,  and  used  by  the  trustees  of  Dartmouth 
College.  Unless  we  greatly  err,  these  and  other  provisions, 
of  said  act,  if  carried  into  operation  without  any  trial  by  ju- 
ry, without  any  forfeiture  judicially  declared,  and  without 
our  consent,  are  palpable  violations  of  the  contract  be  en 
the  government  and  the  grantees  under  the  charter  of  1769, 
and  thus  far  a  revocation  of  the  grant  to  the  trustees  of 
Dartmouth  College  and  their  successors. 

If  the  act  under  consideration  has  its  intended  operation 
and  effect,  every  literary  institution  in  the  state  will  hereaf- 
ter hold  its  rights,  privileges,  and  property,  not  according 
to  the  settled  established  principles  of  law,  but  according  to 
the  arbitrary  will  and  pleasure  of  every  successive  legisla- 
ture. 

We  cannot  see  the  expediency  of  accepting  the  provis- 
ions of  the  said  act,  considering  the  circumstances  under 
which  it  passed,  and  considering  the  unwieldy  number  of 
overseers  and  trustees  it  proposes,  and  the  great  increase  of 
expense  it  will  necessarily  occasion. 

After  much  consideration  we  are  decidedly  of  opinion 
that  the  act  before  recited  is  unconstitutional,  and  that  its 
tendency,  in  point  of  precedent  and  principle,  is  dangerous 
to  the  best  interests  of  society,  and  to  those  principles  on 
which  depend  the  prosperity  of  all  the  civil  and  literary  in- 
stitutions of  our  country. — We  therefore  deem  it  our  indis- 
pensable duty  to  resolve,  and  it  is  hereby 

Resolved,  That  we  the  trustees  of  Dartmouth  College,  do 
not  accept  the  provisions  of  an  act  of  the  legislature  of  New- 
Hampshire,  approved  June  27th,  1816,  entitled  "  An  act  to 
amend  the  charter,  and  enlarge  and  improve  the  corporation 
of  Dartmouth  College,"  but  do  hereby  expressly  refuse  to 
act  under  the  same. 

A  true  copy  from  the  records. 

Attest,         MILLS  OLCOTT,  Sec'ry. 


APPENDIX.  385 

Note  (a)  The  following  are  extracts  : — "  They  in  the  most  respectful  manner, 
remonstrate  against  the  passage  of  the  bill  under  consideration,  for  the  follow- 
ing reasons : — 

"Should  the  bill  become  a  law,  it  will  be  obvious  to  our  fellow  citizens  tkat  the 
vrustees  of  Dartmouth  college  will  have  been  deprived  ri  their  charter  rights  with- 
out having  been  summoned  or  notified  of  any  su«h  proceeding  against  them.  It 
will  be  equally  obvious  to  our  fellow  citizens,  that  the  facts  reported  by  the  com- 
mittee of  investigation  did  not  form  the  ground  and  basis  of  the  new  act  of  incorpo- 
ration ;  and  that  no  evidence  of  facts  of  any  6ort,  relating  to  the  official  conduct  of 
the  trustees,  other  than  the  report  of  the  committee  of  investigation,  was  submitted 
to  your  honourable  bodies.  To  deprive  a  hoard  of  trustees  of  their  charter  rights, 
after  they  have  been  accused  of  gross  misconduct  in  office,  without  requiring  any 
proof  whatever  of  such  misconduct,  appears  to  your  remonstrants  unjust  and  not 
conformable  to  tlie  spirit  of  the  free  and  happy  governmerit,  under  which  we  live. 
To  these  remarks,  it  cannot  be  considered  a  satisfactory  answer,  that  the  design  of 
the  legislature  was  to  improve  the  condition  of  the  college,  and  that  it  was  no  part 
of  their  design  to  express  disapprobation  of  the  official  conduct  of  the  trustees  ;  for 
the  simple  fact  of  depriving  the  trustees  of  their  charter  rights,  and  of  removing  a 
part  of  them  from  office  by  law,  after  having  been  charged  with  gross  misconduct, 
gives  a  contradiction  to  such  an  answer,  and  in  the  strongest  language.  The  under- 
signed humbly  believe,  that  the  majority  of  the  trustees,  in  common  with  their  fel- 
low-citizens, are  entitled  to  a  fair  trial,  where  they  can  meet  their  accusers  face  to 
face,  before  they  can  rightfully,  by  the  legislature  of  the  state,  be  denounced  to  the 
world  in  express  terms,  or  by  necessary  implication,  as  having  violated  the  sacred 
trust  committed  to  their  charge.  lithe  lull  be  understood  by  the  legislature  as  a. 
condemnation  of  the  trustees,  the  undersigned  would  fain  persuade  themselvesthat 
the  honourable  house  and  senate,  will  not  pass  it  till  they  have  cited  the  trustees  to 
appear  before  them,  and  given  them  time  to  meet  and  act  upon  the  citation,  and  to 
'.•e  heard  by  themselves  and  counsel. 

"  The  undersigned  respectfully  remonstrate  against  the  passage  of  the  bill,  re- 
ferred to,  on  the  ground  of  want  of  legitimate  power  to  dissolve,  in  this  matoner, 
the  corporation  of  a  literary  institution,  not  founded  by  the  state,  without  judicial 
nquiiy.  The  charter  of  Dartmouth  jcollege  vests  certain  rights  of  property,  for 
particular  iwes,  in  the  trustees.  The  sovereign  power  having  once  made  this  grant, 
oannot,  as  the  trustees  humbly  conceive,  devest  them  of  it,  so  long  a3  they  exercise 
-heir  trust  in  conformity  to  the  true  intent  and  meaning  of  their  charter.  They  re- 
spectfully call  to  the  view  of  tlie  honourable  legislature,  that  Dartmouth  college 
was  not  founded  by  the  then  existing  sovereign.  It  was  founded  awl  endowed  by 
liberal  individuals  ;  and  the  charter  was  given  by  the  sovereign,  to  perpetuate  the 
application  of  the  property  conformably  to  the  design  of  tbedonors-  It  the  pi-oper- 
tyhus  been  misapplied,  if  there  baa  been  any  abuse  of  power  upon  the  part  of 
•he  trustees,  they  are  fully  sensible  of  their  high  resjionsibility  ;  but  they  have  al- 
.  lieved,  i-.M  mill  believe,  that  a  sound  construction  or  the  powers  granted  t(. 
«hc  legislature,  giv«>s  fh.-.m,  in  this  tfue,  only  the  right  to  order  for  good  t  ause, ; 
prosecution  in  the  .ndicial  eourts.    A  differed    course  effectually  blends  .judiojtf 

i  I   ;rida«jv.  pevers,  and  cors'iv.-'   •  •!»   b.;':i!.i"i".-  a  ;i#ci*1  tribunal 

:<(•■ 


^3fr  Al'FEttDlX. 

"  The  undersigned  also  beg  leave  to  remonstrate  against  the  passage  of  the  bili 
on  the  ground  of  inexpediency. 

"  A  corporation  is  a  creature  of  the  law,  to  which  certain  powers,  rights  aud 
privileges,  arc  granted  ;  and  amongst  others,  that  of  holding  property.  Destroy 
This  creature,  this  body  politick,  and  all  its  property  immediately  reverts  to  its  form- 
er owners.  This  doctrine  has  long  been  recognised  and  established  in  all  govern- 
ments of  law.  Any  material  alteration  of  the  corporation,  without  its  consent,  and 
certainly  such  essential  alterations  as  the  bill  under  consideration  is  intended  to 
make,  will  be  followed  with  the  same  effect.  The  funds  belonging  to  the  college, 
although  not  great  are  highly  important  to  the  institution  ;  and  a  considerable  pro- 
portion of  them  were  granted  by,  and  lie  in,  the  state  of  Vermont.  The  undersign- 
ed most  earnestly  entreat  the  honourable  legislature  not  to  put  the  funds  of  the 
college  in  jeopardy —not  to  put  at  hazard  substantial  income,  under  expectations 
which  may  or  may  not  be  realized. 

'The  revolution  whioh  this  bill,  if  carried  into  operation,  will  produce,  is  not 
demanded  by  any  present  exigency,  or  any  threatening  danger.  The  college  is 
as  flourishing  in  respect  to  the  number  of  students,  to  scholarship,  and  to  habits  of 
industry  and  good  order,  as  it  has  been  in  former  times.  The  committee  of  investi- 
gation, in  their  report,  (page  33)  testify,  "  For  several  years  past,  the  members  ot 
college  have  been  more  attentive  to  their  studies  and  classical  exercises,  more  regu- 
lar in  thcirconduct,and  less  inclined  to  dissipation  of  any  sort,than  in  former  times." 
By  a  document  of  the  college  treasurer,  accompanying  the  report,  it  appears  that 
the  income  ol  the  college  exceeds  the  expenditures, 

"To  the  report  of  the  committee  of  investigation,  the  undersigned,  in  behalf 
of  themselves  and  fellow  trustees,  appeal  for  their  justification  against  the  char- 
ges exhibited  against  them  in  Dr.  WheelOck's  Memorial.  They  rely,  with  great 
confidence,that  the  report  aforesaid  will  be  attended  toby  the  honourable  legislature 
and  an  impartial  publick,  a«  evidence  entitled  to  the  highest  consideration.  By 
a  reference  to  the  memorial,  it  will  be  seen,  that  the  trustees  are  charged  direct- 
ly or  indirectly  with  having  exercised  religious  intolerance  ;  with  having  system- 
atically promoted  one  sect  or  party,  with  political  objects  dangerous  to  government. 
Dr.  Wheelock  alleged  in  the  said  memorial,  that  the  trustees  have  misapplied  the 
funds  of  the  college  ;  that  they  have  invaded  the  rights  of  the  presidential  office  ; 
that  they  used  improper  means  in  the  appointment  of  executive  officers  ;  that  they 
have  formed  an  unjustifiable  connexion  with  an  academy  ;  and  improperly  furnish- 
ed students  thereof  with  aids  from  the  college  treasury  ;  that  they  have  obstructed 
the  application  of  the  funds  of  Moor's  Charity  School,  according  their  original  des- 
tination ;  that  they  have  oppressed  him  in  the  discharge  of  his  office  as  president. 
These  are  heavy  charges  ;  and  if  they  were  founded  in  truth,  the  trustees  deserre 
ihe  severest  reprobation.  But  if  they  were  framed  through  a  mistaken  appre- 
hension of  motives  and  actions,  or  with  the  unjustifiable  object  of  exciting  popular 
odium  against  the  trustees,  to  effect  their  removal  from  office,  in  either  case  com- 
mon justice  requires  that  the  trustees  should  not  be  permitted  to  suffer  by  tlui  sU 
fence  of  the  legislature,  and  most  assuredly  that  a  la-cu  should  not  be  passed  which 
.:•///  be  deemed  by  t/ie  publick  an  expression  of  legislative  condemnation. 


APPENDIX.  381 

"  The  undersigned  respectfully  remonstrate  against  the  passage  of  the  proposed 
bill,  because  it  is  unprecedented.  Never  have  they  heard,  that  the  legislature  of 
any  state,  in  which  existed  a  proper  division  of  power,  has  deprived  the  corpora- 
tion of  a  college,  or  university  not  founded  by  the  state,  of  its  charter  rights,  and 
erected  a  new  one  upon  its  ruins.  The  conatituting  of"  two  large  bodies,  as  con. 
templated  by  this  bill,  will  render  necessary  a  very  serious  augmentation  of  ex- 
penditures. These  numerous  bodies,  we  think.,  will  need  twice  as  much  time  for 
transacting  the  ordinary  business  of  a  session^  as  has  been  employed  by  the  existing 
trustees. 

''  The  union  of  the  whole  community,  in  support  of  the  college,  must  be  highlv 
desirable  in  the  view  of  every  well-wisher  to  the  cause  of  literature  and  U3efu! 
knowledge. — If  the  provisions  of  this  bill  should  take  effect,  we  greatly  fear  that  the 
concerns  of  the  college  will  be  drawn  into  the  vortex  of  political  controversv. — Our 
literary  institutions  hitherto  have  been  preserved  from  the  influence  of  party. 
The  tendency  of  this  bill,  unless  wc  greatly  mistake,  k  to  convert  the  peacefnl  re- 
treat of  our  college  into  a  field  for  party  warfare.  If  a  union  of  the  friends  of  litera- 
ture and  science,  of  all  parties  and  sects,  cannot  be  attained  ;  if  the  triumph  oi 
one  party  over  the  other  be  absolutely  indispensable  ;  fearful  apprehensions  must 
fill  the  mind  of  every  considerate  man— every  dispassionate  friend  of  Dartmouth 
college." 

June  19th,  1S1G. 


No  IK  (b)  The  following  arc  extracts — "  To  many  of  the  topics  of  argument  sug- 
gested in  their  former  remonstrance,  (which  arc:  equally  applicable  against  the 
passage  of  the  bill  in.  its  present  shape)  they  respectfully  ask  leavo  to  add,  that 

"  By  the  charter  of  Dartmouth  college  a  contract  w;<s  made  by  the  then  su- 
preme power  of  the  state  with  the  twelve  persons  therein  named,  by  which,wfen 
accepted  by  the  persons  therein  named,  certain  rights  and  privileges  were  \ested 
in  them  and  their  successes,  for  the  guarantee  of  which  the  faith  of  government 
was  pledged-  In  the  same  instrument  the  faith  of  government  was  pledged  that 
the  corporation  should  consist  of  twelve  tr-uttees  amino  more-  The  change  in  the 
government  of  the  state,  since  taken  place,  does  not  in  the  least  possible  degree 
impair  the  validity  of  this  contract — otherwise  nearly  all  the  titles  to  real  estate, 
held  by  our  fellow  citizens,  must  be  deemed  invalid. 

"  The  passage  of  the  bill  now  before  the  honourable  house  will,  i:i  the  deliberate 
opinion  of  the  undersigned,  violate  the  pl'giited  faith  of  the  government.  If  the  un- 
dersigned arc  correct  in  considering  the  charter  of  1709  in  the  nature  of  a  contract, 
and  if  the  bill,  in  it-  present  shape,  becomes  a  law,  we  think  it  necessarily  follows 
that  it  will  also  violate  an  important  cl.mse  in  the  10th  section  of  the  first  article  in 
llie  ( ■•"!  ititution  of  the  I  'nited  States,  which  provides,  that  no  state  shall  pas:;  any 
'wiring  the  obligation  of  contractu. 

"  The  honourable  legislature  will  do  the  undersigned  the  justice  to  believe,  that 

they  would  not  intentionally  suggest  any  idea  in  relation  to  this  subject,  which  they 

deem  worthy  the  consideration  of  the  highest  authorities,  legislative  or  ju 

■''■■:d,  in  th"  sta'e  or  nation.     Thev  cannot,  after   much   deliberation  bring  th'-ni 


388  APPENDIX, 

telres  to  beliefc  that,  circumstanced  as  they  are,  it  ought  reasonably  to  be  consid- 
ered disrespectful  in  them  to  defend  the  rights  of  tire  corporation,  to  which  they 
belong,  by  submitting  to  the  honourable  legislature  any  arguments  drawn  from  thei 
general  principles  of  acknowledged  law,  or  from  inexpediency,  since  the  Supreme 
Judicial  Court  of  the  United  States,  and  Congress  likewise,  grant  similar  indvlf 
ence." 
June  24tb,  1816/ 


APPENDIX,  No.  II. 


THE  following  Protkbt  was  presented  by  the  minority, 
and  entered  on  the  journals  of  the  house  of  representatives. 
It  was  signed  by  about  eighty  members. 

The  undersigned,  members  of  the  house  of  representa- 
tives, availing  themselves  of  their  constitutional  privilege, 
and  in  the  discharge  of  a  solemn  duty  they  owe  themselves 
and  constituents,  hereby  protest  against  the  act,  which  pass- 
ed the  house  this  day,  entitled  "  an  act,  to  amend  the  char- 
ter, and  to  enlarge  and  improve  the  corporation  of  Dartmouth 
College,"  for  the  following  amongst  other  reasons. 

1.  Because  the  charter  of  the  college  provides  that  the 
whole  number  of  trustees  shall  consist  af  twelve  and  no  more, 
whereas  this  act  is  intended  to  add  nine  trustees  to  the  orig- 
inal number  of  twelve, to  be  appointed  by  the  governour  and 
council ;  and  provides  for  a  board  of  overseers,  to  be  ap- 
pointed likewise  by  the  governour  and  council  ;  and  the 
consent  of  the  existing  trustees  thereto  is  not  required. 

Certain  powers  rights  and  privileges  including  the  right 
of  holding  real  and  personal  estate,  having  been  granted  by 
the  government  to  the  Trustees  of  Dartmouth  College  and 
their  successors  as  appears  by  the  charter  ;  and  the  persons 
therein  named  having  accepted  the  grant,  the  transaction 
has  every  feature  of  a  contract.  Such  a  grant  on  one  side 
with  acceptance  on  the  other,  becomes  irrevocable  on  the 
part  of  government,  so  long  as  as  the  trustees  exercise  their 
powers  according  to  the  true  intent  and  meaning  of  theii 
charter.      Such  is  the   doctrine    laid    down   bv    the   highest 


390  APPF.tfDIT. 

legal  authorities.  Under  this  long  settled  opinion,  various 
grants  have  been  made  to  the  trustees ;  which  they  have 
no  reason  to  believe  would  have  been  made,  if  it  had  been 
deemed  competent  for  the  legislature,  for  political,  or  any 
other  sinister  purposes,  to  enlarge,  diminish  and  modify  at 
their  arbitrary  will  and  pleasure,  the  corporation  of  the  col- 
lege and  to  transfer  the  fee  of  the  real  estate,  and  the  right 
of  personal  property,  thus  granted  from  one  set  to  a  differ- 
ent set  of  trustees.  To  interfere  therefore,  by  a  legislative 
act  with  the  vested  rights  of  those  trustees,  and  without 
anyjudicial  enquiry  and  without  any  proof  of  misconduct 
on  the  part  of  the  trustees,  must  they  think,  be  consid- 
ered by  their  fellow  citizens  a  violation  of  contract,  an  ar- 
bitrary infraction  of  the  charter,  on  the  part  of  govern- 
ment, in  defiance  of  the  tenth  section  of  the  first  article 
of  the  constitution  of  the  United  States,  which  declares 
"  no  state  shall  make  any  law  impairing  the  obligation  of  con- 
tracts." 

2.  They  protest  against  the  said  act,  because  if  it  can 
have  any  legal  operation,  the  trustees  have  been  thereby 
despoiled  and  deprived  of  their  property,  immunities  and 
privileges,  secured  to  them  by  the  charter  ;  and  virtually 
declared  guilty  of  the  charges  exhibited  against  them  by  the 
late  president,  Dr.  John  Wheelock,  without  "  being  fully 
heard  in  their  defence  by  themselves  and  counsel  ;"  which 
they  consider  a  palpable  violation  of  the  plain  and  obvious 
spirit  of  the  fifteenth  article  of  our  bill  of  rights  ;  which  is 
in  the  following  words,  viz  :  "  No  subject  shall  be  held  to 
answer  for  any  crime  or  offence,  until  the  same  is  fully  and 
plainly,  substantially  and  formally  described  to  him  ;  or  be 
compelled  to  accuse  or  furnish  evidence  against  himself. 
And  every  subject  shall  have  a  right  to  produce  all  proofs 
that  may  be  favourable  to  himself;  to  meet  the  witnesses 
against  him,  face  to  face  ;  and  to  be  fully  heard  in  his  de- 
fence,  bv  himself  and  counsel.     And    no  subject   shall    be 


APPENDIX.  391 

arrested,  imprisoned,  despoiled  or  deprived  of  his  property, 
immunities  or  privileges,  put  out  of  the  protection  of  the 
law,  exiled,  or  deprived  of  his  life,  liberty  or  estate,  but  by 
the  judgment  of  his  peers,  or  the  law  of  the  land." 

In  proof  of  this,  they  make  the  following  statement  of 
facts. 

A  majority  of  the  trastees  of  Dartmouth  college  were,  at 
the  last  session  of  the  legislature  charged  by  the  then  pres- 
ident Dr.  Wheelock,  in  a  memorial  he  then  presented,  with 
having  been  guilty  of  gross  misconduct  in  office. — The  le- 
gislature, thereupon,  appointed,  and  sent  a  committee  to  the 
college,  to  investigate  the  facts,  who  have  made  a  report 
at  this  session,  which  i3  now  before  the  publick.  That  re- 
port has  been  the  subject  of  a  farther  report  of  a  legisla- 
tive committee  ;  which  last  mentioned  report  expressly  de- 
clines considering  the  report  of  facts  as  the  proper  ground 
upon  which  the  legislature  ought  to  proceed  in  relation  to 
the  college.  No  evidence  of  any  kind,  relating  to  the  con- 
duct of  the  trustees  or  the  state  of  the  college,  other  than 
the  said  report  of  facts,  has  been  laid  before,  or  requir- 
ed by,  the  legislature.  The  trustees  have  not  been 
cited  to  appear  and  answer  the  charges  exhibited  against 
them  ;  and  have  not  been  heard  on  the  floor  of  the  bouse, 
before  the  legislature,  or  before  either  of  their  committees,  at 
this  or  the  former  session,  either  by  themselves  or  counsel, 
although  the  trustees  present,  petitioned,  in  an  earnest  and 
respectful  manner,  for  that  privilege  ; — a  privilege  granted 
almost  as  a  matter  of  course,  to  every  petitioner,  however 
unimportant  the  subject  of  his  petition. 

3.  They  protest,  because  by  the  report  of  the  committee 
appointed  to  investigate  the  facts  (see  page  33  of  the  print 
ed  copy)  it  appears  that  the  college  is  in  a  prosperous  state 
and  condition,  and  consequently,  that  no  necessity  exists  to: 
any  legislative  interference  whatever. 


392  APPENDIX. 

4.  They  protest,  because,  if  this  act  can  have  any  legal 
operation  without  the  consent  of  the  trustees  under  the  char- 
ter, it  must  in  effect,  destroy  the  former  corporation,  and 
consequently,  endanger  the  funds  belonging  to  the  college  ; 
especially  the  valuable  township  of  Wheelock,  granted  to 
the  college  and  Moor's  school,  by  the  state  of  Vermont.  So 
sensible  did  the  house  of  representatives  appear  to  be  of 
this  consequence,  that  they  refused  bo  to  amend  the  act  as 
to  make  the  state  of  New-Hampshire  responsible  for  the 
losses  the  college  might  sustain  by  reason  of  passing  the  act 
protested  against. 

Finally.  They  protest  against  this  act,  because  its  inevi- 
table tendency  is  to  make  the  highest  seat  of  literature  and 
science,  in  the  state,  subject  to  every  change  and  revolu- 
tion of  party;  than  which  nothing  in  their  opinion  can  be 
oiore  destructive  to  its  welfare. 


APPENDIX,  No.  HI. 


EXTRACT  from  Bishop  Stillingjleet's  argument  in  the 
House  of  Lords  in  the  case  of  Exeter  College.  See 
page  25'3. 

"But  that  which  I  particularly  observe,"  continues  Dr. 
Stillingfleet,  "is,  that  these  founders  of  colleges  did  take 
special  care  to  prevent,  as  much  as  possible,  all  law-suits 
among  the  members  of  their  societies,  as  most  destructive 
to  the  peace  and  unity  of  their  body,  and  the  tranquility 
necessary  for  their  studies.  For  they  knew,  very  well, 
that  if  any  encouragement  were  given  to  suits  at  law,  those 
places  would  in  time  become  nurseries  for  attornies  and  so- 
licitors, which  were  to  pervert  the  main  design  of  their  foun- 
dation. fValtcr  de  Merton,  the  first  founder  of  a  college 
in  Oxford,  with  revenues  to  support  it,  took  such  care  about 
this,  that  he  puts  the  case,  in  his  statutes,  of  a  warden's  be- 
ing deprived  ;  and  knowing  that  men  are  apt  to  complain 
when  they  suffer,  and  to  endeavour  one  way  or  other  to  be 
restored  (which  causes  great  heats  and  animosities  among 
the  contending  parties)  therefore,  to  prevent  these  mis- 
chievous consequences,  he  puts  in  a  chapter  on  purpose, 
in  his  statutes  ;  that  if  such  a  case  happened,  "  Nulla 
actio,  nullum  juris  remedium  canonici  vel  civilis  habeat, 
&c. — This,  you  may  say,  is  a  very  hard  case;  may  not  a 
man  see  himself  righted  by  proper  remedies  at  law?  But 
*  Li I -»  wise  founder  looked  on  the    consequence   as  to  the   so- 

r»J 


394  APPENDIX 

ciety,  more  than  the  personal  injury  of  him  that  suffered; 
and  he  preferred  the  peace  of  bis  college,  before  the  res- 
toring a  particular  person  to  his  place.  And  he  thought  the 
injury  to  the  college  by  law-suits  would  be  far  greater,  and 
fitter  to  be  considered  by  him,  than  the  injury  and  mischief 
which  one  man  suffered." 

Dr.  Stillingfleet  concludes  his  able  opinion  and  judgment 
in  this  cause  thus  : 

"  If  then  your  lordships  would  consult  (as  I  know  you 
will,)  the  good  of  tlwse  societies,  which  have  an  influence 
on  the  whole  kingdom  ;  if  you  would  promote  learning  and 
virtue,  and  unity  among  them,  there  must  be  a  timely  check 
given  to  these  tedious,  expensive  and  troublesome  suits  at 
law,  which  disquiet  the  thoughts,  eat  out  the  time,  exhaust 
the  purses  of  all  that  are  concerned  in  themr  and  lay  the 
foundation  in  colleges  of  perpetual  feuds  and  animosities. 
And  therefore,  although  it  be  possible  for  a  visitor  to  go 
beyond  his  bounds,  (for  none  are  infallible,)  yet  if  such  a 
case  be  put,  it  is  better  that  one  person  suffer,  than  that 
the  discipline,  government,  and  peace  of  the  college  be  in 
danger  of  being  utterly  destroyed.  For  one  froniard  con- 
tentious man,  going  to  law  with  the  college,  upon  a  cen- 
sure inflicted  upon  him,  and  being  encouraged  so  to  do, 
may  put  the  college  into  such  heats  and  animosities,  as  ai  e 
of  far  worse  consequence  than  his  continuing  to  suffer  under 
a  sentence  of  deprivation." 

Stilling flee? s  Works,  Vol  III.  page  ft?7.  The  case  pf 
Exeter  College. 


APPENDIX,  No.  IV, 


SINCE  the  argument  of  this  cause  the  British  Parlia 
went  has  passed  "  Au  act"  (58  Geo.  III.  chapt.  91.)  "  for 
appointing  commissioners  to  enquire  concerning  charities  in 
England  for  the  education  of  the  poor."  This  act  author- 
izes only  an  enquiry  by  the  commissioners,  and  a  report  to 
parliament  and  the  crown  ;  yet  it  is  expressly  enacted,  (Sect. 
12.)  "That  none  of  the  provisions  herein  contained  shall  be 
construed  to  extend  to  either  of  the  universities  of  Oxford 
or  Cambridge,  nor  to  any  college  or  hall  within  the  same, 
nor  to  any  schools,  or  other  endowments  of  which  the 
said  universities,  colleges,  or  halls,  are  trustees,  nor  to  the 
colleges  of  Westminster,  Eton,  or  Winchester,  or  to  the 
charter  house,  or  the  schools  of  Harrow  or  Rugby,  or  any 
of  them,  nor  to  any  cathedral  or  collegiate  church  within 
Englatid,  nor  to  any  college,  free  school,  or  other  charita- 
ble institution  for  the  purposes  of  education,  which  have 
special  visitors,  governours,  or  overseers  appointed  by 
ttieir  founders." 

"  The  obvious  ground  nf  this  exception,"  says  an  able 
writer,  "  is,  that  such  special  visitors  being  persons  appoint- 
ed by  the  founders  as  their  perpetual  representatives,  to 
protect  the  interest  of  the  foundations  and  to  enquire  into 
the  due  execution  of  their  bequests,  and  being  armed  by 
ihe  law  with  full  powers  for  so  doing  :  the  appointment  of  u 
commission  for  (he    very  same  purpose  would  have  l»>rn  an 


39G  APPENDIX. 

assumption  of  Ihelr  privileges,  and  an  interference  with  the 
-will  of  Ihe  donors"(l). — In  the  discussion  of  this  bill  in  the 
house  of  lords,  Lord  Chancellor  Eldon  said  "  there  were 
in  ihe  country  numerous  and  splendid  charities,  founded 
by  munificent  donors  ;  and  cujus  est  dare,  ejus  est 
disponere;  and  such  charities  ought  only  to  be  under 
the  domksticum  forum  of  the  visitors  nominated  by  the 
founders,  and  courts  of  law  ought  to  have  nothing  to  do 
with  them,  tin  I  ess  they  abused  their  trust  ;  and  he  would 
resist  to  the  utmost  all  legislative  interference  with  their 
duties,  and  should  be  glad  to  know  where  was  the  power 
of  parliament  to  interfere  in  such  cases."— 

The  foregoing  provision  in  the  statute  of  58  Geo.  III.  is 
little  else  than  a  transcript  of  the  second  and  third  sections 
of  the  statute  of  Charitable  Uses  (43  Eliz.  ch.  IV.)  The 
last  of  these  sections  is  as  follows — "  And  provided  also 
that  this  act  nor  anj  thing  therein  shall  extend  to  any  city, 
or  town  corporate,  or  to  any  of  the  lands  or  tenements  given 
to  the  uses  nforesaid  within  any  such  city  or  town  corpo- 
rate, where  there  is  a  special  governour  or  governours  ap- 
pointed to  governor  direct  such  lands,  tenements,  or  things 
disposed  to  any  of  the  uses  aforesaid  ;  neither  to  any  col- 
lege,hospital,  or  free  school,  which  have  special  visitors, 
or  governours,  or  overseers  appointed  them  by  their  foun- 
ders."— 

(I)  Vol.  19  Qu.  Rev.  517. 


APPENDIX,  No.  V. 


HARVARD  COLLEGER  incorporated  with  aboard  of 
overseers,  having  a  check  upon  some  of  the  proceedings  of 
the  corporation,  which  is  composed  of  governours  or  trustees, 
by  the  name  of  the  President  and  Fellows  of  Harvard  Col- 
lege. By  the  statute  1809,  ch.  113,  entitled  "  An  Act  to 
alter  and  amend  the  constitution  of  the  Board  of  Overseers 
of  Harvard  college,"  the  legislature  of  Massachusetts,  with 
the  consent  of  both  boards,  made  some  alterations  in 
the  board  of  overseers.  By  another  act  passed  February 
29,  1812,  without  the  consent  of  either  board,  the  first  men- 
tioned act  was  repealed,  and  the  board  of  overseers  consti- 
tuted as  before  its  enactment.  The  corporation  and  over- 
seers remonstrated  against  the  repealing  act,  and  it  was  it- 
self soon  after  repealed.  The  following  is  an  extract  from 
the  remonstrance. 

"  The  legislature  of  1809  were  careful  to  preserve  the 
ancient  foundation  of  the  college  unimpaired,  and  to  pre- 
vent all  ground  for  the  apprehension,  that  ihe  chartered 
privileges  of  the  college  are  less  sacred  in  the  eyes  of  the 
present  generation  than  they  have  been  in  the  eyes  of  our 
predecessors.  They  made  this  alteration  in  such  a  manner 
that  the  legal  rights  of  the  college  could  not  be  injuriously 
affected,  for  they  annexed  to  the  act  the  condition,  that  i< 
should  go  into  effect,  when  the  provisions  of  it  should  be  ac- 
cepted by  the  two  college  boards.  It  is  a  principle  admit 
ted,  that  a  coporation  may.  with  its  consent,  be  altered  by  a 


398  APPfcNMX. 

legislature  uot  specially  or  constitutionally  restricted.  For 
several  reasons  it  was  considered,  that  this  principle  must 
be  applied  in  the  present  instance,  and  that  without  the  con* 
sent  of  the  boards,  the  alteration  could  not  be  made.  It  oc- 
curred, that  so  far  as  the  constitution  is  concerned,  the  pow- 
ers of  the  college  government  rest  on  the  same  foundation, 
and  have  the  same  authority  as  the  power  of  the  legislature. 
This  constitution  reserves  to  the  legislature  so  much  con- 
troul  over  the  college  government,  as  respects  the  overseers, 
as  might  have  been  exercised  by  the  provincial  legislature. 
In  regard  to  the  extent  of  this  controul,  the  provincial  legis- 
lature, it  is  believed,  could  not  make  the  alteration  proposed 
without  the  assent  of  the  existing  college  government,  for  the 
college  was  established  by  the  same  province  charter,  by 
which  the  legislature  was  created.  The  general  court  de- 
riving its  authority  from  the  provincial  charter,  could  not  le- 
gally controul  the  rights  of  others  derived  from  the  same 
charter,  since  this  would  be  to  rescind  a  part  of  the  char- 
ter, which  was  the  very  foundation  of  the  legislative 
powers  of  the  province,  and  to  annul  the  very  authority  by 
which  the  general  court  existed.  Further  the  corporation 
is  admitted,  on  all  bands,  to  be  confirmed  by  said  province 
charter.  But  the  corporation  in  the  exercise  of  its  pow- 
ers, was  subject  to  the  controul  of  a  board  of  visitors, 
designated  by  the  same  authority  by  which  it  was  created. 
To  this  controul  the  said  corporation  must,  of  right  submit  : 
and,  without  its  own  consent,  to  no  other  controul  whatever. 
To  establish  any  other  controul  over  this  body,  would  be 
an  alteration  of  its  power,  to  which  no  authority  is  compe- 
tent, unless  it  can  lawfully  annihilate  the  corporation. — 
These  and  other  principles  could  not  fail  to  be  considered 
as  fixing  boundaries  to  the  power  of  the  provincial  legisla- 
ture over  the  co'lege  government.  If  even  the  rights  of  the 
college  had  not  been  confirmed  by  the  charter  of  William 
and  Mary,  and  if  the  corporation  had  been  created  by   the 


APPENDIX 


399 


general  court,  established  expressly  by  that  charier,  whose 
powers  were  not  expressly  limited  by  any  declaration  of 
rights,  it  could  not  then  be  admitted  that  the  legislature  of 
the  late  province  of  Massachusetts  Bay  could  legally  al- 
ter the  powers  of  the  corporation  without  its  consent,  un- 
less it  could  be  admitted  that  the  same  legislature  could 
legally  repeal  its  own  grants,  and  annul  the  rights  of  any 
inhabitants  derived  from  such  grants.  The  reasoning,  to 
which  the  several  views  of  the  subject  led,  is  confirmed  by 
the  practice  of  a  century.  The  general  court  have  con- 
firmed and  enlarged,  but  never  impaired,  or  abridged  the 
powers  of  the  college  government.  Whenever  the  question 
arose,  they  appear  to  have  put  the  same  construction  upon 
their  powers  of  alteration,  which  the  legislature  who  passed 
the  statute  of  1809,  adopted  :  For  example,  in  1792,  \\ic 
overseers  petitioned  that  the  corporation  might  be  enlarged  ; 
but  the  corporation  not  consenting,  the  house  of  representa- 
tives refused  to  grant  the  petition.*  Attempts  were  after 
wards  made,  to  persuade  the  general  court  to  exercise  the 
visitatorial  power,  and  to  interfere  with  the  doings  of  e 
overseers  but  without  effect. 

"  On  these  grounds  the  legislature  were  anxious  when  in 
1809  they  purposed  to  give  the  college  the  benefit  of  an 
improved  constitution  of  the  board  or  overseers  to  save  all 
the  chartered  rights  of  the  college.  The  former  board 
under  the  legislative  sanction,  divested  themselves  of  their 
trust  in  favour  of  the  present  overseers.  These  overseers, 
it  is  believed,  have  succeeded  to  all  the  rights  and  powers 
which  belonged  to  their  predecessors  in  the  same  office  ; 
and  hold  these  rights  and  powers  by  a  permanent  tenure, 
subject  only  to  the  implied  condition  of  a  faithful  execution 
of  the  trust.  The  provision  in  the  third  article  of  the  fifth 
chapter  of  the  constitution  of  the  state  which  reserves  to  the 
legislature  the  same  power  in  respect  to   the  government   of 

*  Iteetirrta  of  elm  Overseers   \7'>'? 


400  APPENDIX. 

the  college,  as  pertained  to  the  legislature  of  the  late  prov- 
ince, must  in  any  interpretation  include  a  power  extending 
to  such  alterations  iu  the  board  of  overseers  as  should  be 
made  with  the  consent  of  both  college  boards,  on  whom  such 
alteration  was  to  operate.  Such  consent  having  been  pro- 
vided for  by  the  statute  1809,  and  given  by  the  said  boards, 
the  corporation  created  pursuant  to  said  act,  have,  as  your 
memorialists  believe,  acquired  rights,  of  which  they  cannot 
be  deprived,  but  by  their  own  consent,  or  by  some  legal 
process  founded  on  a  charge  of  misbehaviour." 

Constitution  of  the  University  at  Cambridge  p.  29. 


APPENDIX,  No.  VI. 


In  the  year  1763,  an  attempt  was  made  by  a  number  of 
gentlemen  to  procure  the  legislature  of  Connecticut  to  inter- 
fere with  the  government  of  Yale  College,  against  the  con- 
sent of  the  corporation.  In  their  memorial  they  represent- 
ed, that  the  general  assembly  were  the  founders  of  the  col- 
lege, and  had  a  right  to  appoint  visitors,  and  reform  abuses. 
This  right,  they  suggested,  ought  to  be  seasonably  and  most 
explicitly  asserted  and  vindicated,  otherwise  the  college 
might  become  too  independent.  They  therefore  prayed 
that  the  said  assembly  would  pass  an  act,  to  authorize  an 
appeal  from  any  and  every  sentence  given  by  the  authority 
of  the  college,  to  the  governour  and  council  of  the  colony 
and  issue  forth  a  commission  of  visitation,  enabling  some 
suitable  persons  to  enquire  into  all  the  affairs  of  said  college, 
and  either  of  themselves  rectify  abuses,  or  make  report  of 
what  they  should  find,  with  their  opinions  thereon,  to  the 
said  assembly,  at  their  next  session. 

The  counsel  for  the  memorialists  were  Jared  Ingersoli 
and  Samuel  W.  Johnson,  Esquires,  the  two  most  learned 
and  famous  attornies  of  that  day,  in  the  colony.  Great  ex- 
pectations were  formed  by  the  enemies  of  the  college  from 
this  measure,  and  the  great  ability  of  their  counsel;  and 
its  friends  were  not  without  fears  and  anxieties.  That  class 
of  people,  who  had  been  so  long  and  so  strongly  opposed 
o  thejrollege,  fluttered  themselves  with   the    pleasing  pros- 


402  APPENDIX. 

pect  of  bringing  it  to  their  feet,  and  of   amply  reaping  the 
fruit  of  their  past  labours. 

The  Rev.  Thomas  Clap,  the  learned  president  of  the 
college,  viewed  the  cause  of  too  great  consequence  to  be 
trusted  in  any  hands  but  his  own  ;  and  judged  it  his  duty  to 
the  founders  of  the  college,  to  employ  his  talents  for  its  de- 
fence, and  to  plead  the  cause  himself  in  the  face  ot  all  op- 
position. This  task  he  executed  with  uncommon  ability 
and  success. 

The  counsel  for  the  memorialists  alleged  that  the  general 
assembly  founded  the  college  by  giving  a  charter  in  the 
year  1701,  which  contained  a  donation  of  about  60/.  sterling 
to  be  annually  paid  out  of  the  publick  treasury,  and  by  sun- 
dry subsequent  donations,  especially  five  tracts  of  land  in 
the  year  1T32  ;  and  that  the  present  assembly,  as  succ  a 
sors  to  the  founders,  had  a  right  of  visitation,  by  the  com- 
mon law. 

To  which  the  president  replied  ; — "  That  the  general 
assembly,  in  their  legislative  capacity,  have  the  same  au- 
thority over  the  college,  and  all  the  persons  and  estates  be- 
longing to  it,  as  they  have  over  all  other  persons  and  estates 
in  the  colony ;  and  all  that  power,  which  is  necessary  for 
the  good  of  the  college,  or  the  general  good  of  the  commu- 
nity. And  that  an  especial  respect  and  gratitude  is  due  to 
them  as  its  greatest  benefactors  ;  yet  they  are  not  to  be 
considered  as  founders  or  visitors  in  the  sense  of  the  com- 
mon law.  That  the  first  trustees,  undertakers,  and  inspec- 
tors, who  were  nominated  by  the  ministers  with  the  general 
consent  of  the  people,  and  by  compact  became  a  society  or 
quasi  corporation  (as  my  lord  Coke  says)  near  two  years 
before  they  had  a  charter,  were  ihefounders  of  the  college; 
and  that  they  formed  it  by  making  a  large  and  formal  do- 
nation of  books,  above  a  year  befo. e  they  had  a  charter 
from  the  government.  That  the  college  had  a  being,  not 
only  in  fieri,  in    the  purpose  and  intention  of  the  mideriak- 


APPENDIX.  403 

ers  (as  lord  Ooke  says,)(l)  but  in  esse,  by  the  donation  of 
books,  money,  and  land,  actually  made  to  it  before  it  had 
a  charter.  That  major  Fitch  of  Norwich,  made  a  donation 
in  writing,  to  the  undertakers,  of  six  hundred  acres  of  land, 
and  some  materials  to  build  a  college  house,  in  the  time  of 
the  sitting  of  the  assembly,  some  days  before  the  charter 
was  given.  And  this  donation  he  made  to  the  collegiate 
school  as  'already  set  up  by  the  great  pains  and  charges  qfi 
the  ministers." — That  the  king,  by  giving  a  license  to  found 
a  college,  does  not  Uiereby  in  law  become  the  founder  in} 
sensu  dotationis  ;  and  that  he  is  the  founder  only  of  those 
colleges  or  hospitals,  to  which  he  makes  the  first  donation 
for  founding.  My  lord  Coke  distinguishes  between  Funda- 
tor  Incipiens  and  Fundator  Perficiens  ;  and  says,  that  he 
only  is  the  founder  quoad  dotationem  (to  whose  heirs  orsuc- 
cessors  the  law  gives  the  right  of  visitation,)  who  makes  the 
first  donation^!).  And  the  right  of  visitation  arises  in  law, 
from  the  interest  which  the  founder  has  in  the  college  or  hospi- 
tal by  his  donation.  For  if  it  be  essentially  perverted  from  the 
design,  for  which  it  \va3  given,  the  donation  becomes  void, 
and  revert3  to  the  donor  or  his  heirs.  That  the  first  dona- 
tion only  creates  the  founder,  and  all  subsequent  donations 
are  presumed  in  law  to  be  given  for  the  same  end  and  de- 
sign with  the  fust,  unless  some  particular  limitation  be  ex- 
pressly made. 

"  That  if  a  common  person  makes  a  donation  to  found  a 
college  or  hospital,  though  ever  so  small,  and  the  king  after- 
wards endows  it  with  large  possessions,  yet  the  common 
person  is  the  founder  and  not  the  king(3). 

"  That  a  license  to  found,  and  a  charier  of  incorporation, 
are  in  their  own  nature  distinct.  Either  may  be  first  in 
fciw,  (yet  they  are  oftentimes  both  contained  in  the  same  in- 

f  l)  Coke  10  Rep. 

(2;C'»kf  10  Rep. 
(Sj  Wwl't.  Irntitute* 


404  APPENDIX. 

strument,)  and  may  precede  or  succeed  the  first  fundament- 
al donation. 

"  When  the  fundamental  donation  is  made  before  the  li- 
cense to  found,  there  the  license  is  only  a  formal  and  ex- 
plicit confirmation  from  the  crown,  of  what  was  before  done 
by  the  general  license  given  by  the  common  and  statute  law, 
whereby  every  man  may  give  his  estate  for  publick,  pious, 
and  charitable  uses,  upon  such  conditions  and  regulations 
as  he  shall  see  cause(4).  And  the  feoffees  in  trust  are  the 
legal  proprietors  of  such  donations,  according  to  the  condi- 
tions and  limitations  with  which  they  are  made  ;  and  have 
a  legal  right  to  hold  and  lease,  and  to  dispose  of  the  profits 
as  a  quasi  corporation,  for  those  particular  purposes ;  and 
may,  by  a  long  course  of  stated  and  regular  conduct,  be- 
come a  complete  legal  corporation  by  prescription.  And 
the  king's  charter  or  license  only  makes  or  declares  that  to 
be  a  legal  corporation,  at  the  first,  which  may  become  such 
by  immemorial  usage  and  custom.—- 

"  In  a  license  to  found,  the  words  found,  erect,  or  any 
other  words  of  the  like  import,  are  indifferent  in  law,  and 
sufficient  to  make  a  foundation  ;  and  in  the  first  charter  or 
grant  to  the  college,  these  words  are  promiscuously  used 
and  applied  to  the  first  trustees  only.  The  first  charter 
plainly  supposes  ten  trustees,  partners,  or  undertakers  an- 
tecedently existing  ;  and  a  school  already  founded  in  fact, 
(though  not  fully  and  completely  so  in  law)  by  donations  of 
lands,  goods,  and  monies,  before  given  ;  and  therefore  gives 
them  a  full  legal  right,  liberty,  and  privilege  to  proceed  in 
erecting,  endowing,  and  governing  the  school,  which  they 
had  a  general  and  imperfect  right  to  do  by  the  common 
law.  And  the  charter  declares  them  to  be  in  a  legal  ca 
pacity  to  "  demand,  have,  hold,  and  possess  all  such  lands, 
goods,  and  monies,  as  have  heretofore  been  given,  (as  well 
as  those  which  might  hereafter  be  given,  for  the  founding*, 
erecting,  aud  endowing  the  said  school," 
(4)  See  39  Eliz.  o.  5.  and  Connecticut  Laws- 


APPENDIX.  105 

"  And  there  is  no  intimation,  that  their  giving  to  the  first 
trustees  a  right  to  receive  sixty  pounds  out  of  the  publick 
treasury  a  year  after,  and  annually,  and  to  improve  it,  at 
their  discretion,  for  the  good  of  the  school,  should  be  deem- 
ed the  founding  of  it ;  to  be  sure  not  in  such  a  sense  as  to 
annul  the  former  foundation  ;  much  less  could  any  endow- 
ments made  thirty  years  after  make  them  the  founders  in 
the  sense  of  the  common  law.  Besides,  the  preamble  to  the 
charter  of  1T45  expressly  says  that  the  first  trustees /omitt- 
ed! the  college 

"  The  power  of  visitation  is,  by  the  common  law,  ex- 
pressly limited  to  the  statutes  of  the  founder  (5),  which  are 
the  conditions  or  limitations  of  the  use  of  the  founder's  do- 
nation ;  and  the  visitor  can  do  nothing  but  rectify  those 
things,  which  are  plainly  repugnant  to  those  limitations,  or 
claim  a  forfeiture.  But  as  no  such  statutes  made  by  the 
general  assembly  can  be  found,  such  visitors  would  have  no 
power  at  all,  or  be  altogether  arbitrary,  like  the  visitors  sent 
to  Magdalen  College  by  king  James  II. — 

"  If  it  should  be  supposed,  that  there  is  any  need  of  over- 
seers, under  the  name  and  title  of  visitors,  the  first  trustees 
and  their  successors  may  properly  be  denominated  such  ; 
and  in  the  first  plan  of  the  college,  they  are  expressly  called 
inspectors.  That  to  have  visitors  over  visitors  or  inspec- 
tors, would  make  endless  trouble  and  confusion.  That  mat- 
ters of  property  must  be  determined  by  the  stated  execulivt: 
courts,  according  to  the  course  of  the  common  law  ;  but  to 
erect  any  new  kind  of  court  over  the  affairs  of  the  college, 
which  are  committed  to  the  president  and  fellows,  would  be 
an  infringement  of  their  charter-." — 

When  the  arguments  had  been  fully  heard  and  consider- 
ed, there  were  but  a  very  small  number  of  the  general  as- 
sembly,who  were  of  the  opinion  that  they  were  {he founders 
of  the  college  :  and  so  they  acted  nothing  upon  the  memorial. 

(:">)  Lord  Raymond'*  Reports,  Vol.  1.  p.  7. 


106  APPENDIX. 

The  historian  adds,  "The  memorialists,  and  their  whole 
part}',  were  greatly  disappointed  and  chagrined,  and  the 
president  got  much  honour  by  the  defence,  which  he  made 
of  the  college.  He  appeared  to  be  a  man  of  extensive 
knowledge  and  real  greatness.  In  points  of  law,  especially 
a3  they  respected  colleges,  he  appeared  to  be  superiour  to 
all  the  lawyers,  so  that  his  antagonists  acknowledged  that  he 
knew  more,  and  was  wiser  than  all  of  them.  The  question 
relative  to  the  assembly's  being  the  founders  of  the  college, 
and  having  a  right  of  visitation,  has  never  been  publickly  dis- 
puted since,  and  it  is  believed  that  it  never  will  be  again." 

Trumbull's  History  of  Connecticut,  Vol.  2.  p.  327  to 
333.— Clap's  Annals  of  Yale  College,  p.  69  to  77. 


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